Volume 213 — Federal Reporter

<p>1. Criminal Law (§ 1116*)—Questions for Review—Sufficiency of Indictment.</p> <p>An indictment not demurrable on its face does not become so by the addition of a bill of particulars, since the bill of particulars is no part of the record.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2924; Dec. Dig. § 1116.*]</p> <p>2. Post Office (§ 48*)—Offenses Against Postal Laws—Indictment.</p> <p>It was not necessary for an indictment for mailing newspapers containing obscene matter to charge that the newspapers in which the objectionable article appeared were obscene.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. § 48.*]</p> <p>3. Post Office (§ 48*)—Offenses Against Postal Laws—Indictment.</p> <p>The omission from an indictment for mailing obscene matter, which the indictment alleges is not proper to be spread at length upon the records of the court, does not render the indictment demurrable, where the offense is so described as to reasonably inform defendant of the nature of the crime charged, though the entire article claimed to be obscene should be set out at length either in the indictment or by bill of particulars, if requested, whenever defendant is liable to be surprised by evidence for which he is unprepared.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. § 48.*] . .</p> <p>4. Post Office (§ 31*)—Statutory Provisions—Offenses.</p> <p>Criminal Code, § 211 (Act March 4, 1909, c. 321, 35 Stat. 1129 [U. S. Comp. St. Supp. 1911, p. 1651]), making obscene, lewd, lascivious, or filthy matter nonmailable and prescribing the punishment for depositing such matter for mailing or delivery, is' a valid exercise of the power to establish a postal system.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. §§ 50, 52; Dec. Dig. § 31.*]</p> <p>5. Post Office (§ 31*)—Statutory Provisions—Offenses.</p> <p>Criminal Code, § 211 (Act March 4, 1909, c. 321, 35 Stat. 1129 [U. S. Comp. St. Supp. 1911, p. 1651]), making certain matter nonmailable and providing that it shall not be conveyed in the mails or delivered from any post office .or by any letter carrier, and providing that whoever shall knowingly deposit for mailing or delivery anything thereby declared to be nonmailable shall be punished by fine or imprisonment, applies only to the depositing of such matter in the mails and is not invalid as prohibiting the deposit of such matter in private depositories or other places over which Congress has no control.</p> <p>[Ed. Note.—Por other cases, see Post Office, Cent. Dig. §§ 50, 52; Dec. Dig. § 31.*]</p> <p>6. Post Office (§ 31*)—Statutory Provisions—Offenses.</p> <p>Criminal Code, § 211 (Act March 4, 1909, c. 321, 35 Stat. 1129 [U. S. Comp. St. Supp. 1911, p. 1651]), making certain matter nonmailable and forbidding its conveyance in the mails or delivery from any post office or by any carrier and prescribing a penalty for the deposit of such matter for mailing or delivery, is not a mere direction to the post office officials, and violations thereof are punishable as crimes in view of the enacting clause, which provides that the penal laws are thereby codified, etc., and section 335, providing that all offenses punishable by death or imprisonment for a term exceeding one year shall be deemed felonies and all Other offenses misdemeanors.</p> <p>[Ed. Note.—Por other eases, see Post Office, Cent. Dig. §§ 50, 52; Dec. Dig. § 31.*]</p> <p>7. 'Constitutional Daw (§§ 199, 250, 258*) — Statutory Provisions — Offenses.</p> <p>Criminal Code, § 211 (Act March 4, 1911, c. 321. 35 Stat. 1129 [U. S. Comp. St. Supp. 1911, p. 1651]), making obscene matter nonmailable and prescribing the punishment for depositing it for mailing or delivery, is not invalid as failing to provide any test of obscenity or of guilt, thereby-denying due process of law, the equal protection of the laws, and the guaranty against ex post facto laws.</p> <p>[Ed. Note.—Por other cases, see Constitutional Daw, Cent. Dig. §§ 551-569, 576-580, 582, 583, 711-713, 748; Dee. Dig. §§ 199, 250, 258.*]</p> <p>Nonmailable matter, see notes to Timmons v. United States, 30 C. C. A. 79; McCarthy v. United States, 110 C. C. A. 548.]</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.</p> <p>Action by Mrs. Annie Middleton against P. Sanford Ross, Incorporated. Judgment (202 Fed. 799) for defendant, and plaintiff brings error.</p> <p>The material allegations of the first count of the petition are as follows:</p> <p>That P. Sanford Ross, Incorporated, is a New Jersey corporation, having an agent, office, and place of business in Chatham county; Ga.; that the petitioner is the widow of Edwin Middleton, of Chatham county, Ga., lately deceased, and claims damages from the said P. Sanford Ross, Incorporated (hereinafter called the defendant), by reason of the homicide of her husband, in the sum of $25,000; that the said defendant is engaged in the business of owning and operating dredges and other boats, and at the times hereinafter named was engaged in said business. Defendant, on the 22d day of March, 1912, was engaged in rebuilding one of its dredge boats which had been damaged by fire, said dredge being rebuilt at a wharf in Savannah river in said county and state, near the foot of Barnard street, and the work thereon being done by and under the supervision of the defendant company.</p> <p>Messrs. John Rourke & Sons, a firm of machinists, had been employed by the defendant to install an engine in said dredge boat. Petitioner’s husband was in the employ of said John Rourke & Sons in the capacity of foreman, and was to have superintended the installation of said engine in said dredge after same was placed in position, coupling and installing said engine and adjusting its necessary parts. The wooden'deck of said dredge was being erected and the necessary space left thereon in the forward portion thereof for the installation of said engine in the “hold” of the dredge. Said engine had been placed upon temporary beams, it being intended to take out said temporary beams and permanently install said engine on its bed. In order to “house” over said dredge and to complete the upper structure thereof, upright posts were installed by defendant along the side of said dredge on its deck at intervals of about 20 feet apart. These uprights are about 20 feet in length. The deck of said dredge is about 30 feet wide. Crosswise of said dredge, and extending from the upright posts on each side thereof, are laid crossbeams or •timbers, intended to be securely fastened, and thus making the framework of the upper portion of said dredge. The framework is known as the “hog frame.” Two of said upright posts, at the time hereinbefore stated were erected about 20 feet aft of the place where said engines were being installed. A crossbeam about 30 feet in length and about 12x12 in size, had been placed on the top of said uprights, extending crosswise of the deck. This was intended to be permanently placed and bolted. On the wharf was located a steam-hoisting engine with derrick and fall attached, the derrick boom being movable and swinging over the dredge.</p> <p>E. D. Yan Winkle was the superintendent of the defendant in charge of the work of reconstructing said dredge, and was its alter ego at the time and place herein referred to. During the course of said work and on the date aforesaid, it became necessary to remove a stick of timber upon which the engine was resting. This timber was about 14 inches by 14 inches and 25 feet in length. In order to accomplish this, a wire cable was run from said derrick boom and fastened around the timber underneath said engine. Said chble was not fastened in the middle underneath said engine. Said cable was not fastened in the middle of said timber. It was not Gross-tied nor balanced. The result was that when said timber was hauled by said cable and brought above the deck, one end sagged down and the lighter end thereof was projected upward. Some of the employes of the defendant caught hold of the lighter end of said stick of timber while it was being moved. As the timber was being hauled upward it got beyond the control of said men who were holding the lighter end thereof, and the heavy end sagged downward, jerking the other end from the control of said men. As said stick of timber thus jerked loose, it struck the crossbeam above described, resting on the two upright posts of the “hog. frame,” and knocked the same from its position, throwing it down upon the deck of said dredge with great force and violence.</p> <p>Petitioner’s husband was not engaged in the work of moving said stick of timber, nor did his duties require that he should take any part therein, and none of the employés of John Rourke & Sons was engaged in such work, the same being done entirely by the defendant, its servants and employés. When the work of removing said timber commenced, petitioner’s husband had walked aft of the place where said work was being performed, and was standing at the side of the dredge, about 15 or 20 feet away, in what was apparently a safe place. The place where petitioner’s husband stood was a safe distance away from .said work and not in the course of line.of work. It was on the wharf or starboard side of said vessel, by the upright posts of said “hog frame.” Petitioner’s husband had nothing to do with the construction- or placing of said crossbeams, or in the removal of said beam from beneath .the engine. While petitioner’s husband was thus standing in a place of apparent safety, without warning of any kind, the crossbeam, which should have been securely fastened and bolted in position, was struck by the stick of timber being raised out of said hole of said dredge, as described in the preceding paragraph, and fell with great force and violence, striking petitioner’s husband upon the head and inflicting injuries from which he died within a short time.</p> <p>At the time said injuries were received by petitioner’s husband, he was in a place where he had a right to be. He did not contribute or consent to the said injuries, and could not, by the exercise of ordinary care, have avoided the same. Defendant knew of the unsafe and insecure position of said crossbeam ; by the exercise of ordinary care it could have so known.</p> <p>Defendant was negligent at the time and place aforesaid:</p> <p>(a) In failing to provide a safe place to work in and aboard said dredge, and at the place where petitioner’s husband was killed.</p> <p>(b) In failing to securely fasten both ends of said crossbeam resting upon said uprights, as it should have done prior to the removal of said timber.</p> <p>(c) In failing to warn petitioner’s husband of the failure on its part to securely fasten and bolt the said ends of said crossbeams resting on the upright posts, and of its unsafe and insecure position.</p> <p>(d) In allowing said crossbeams to lie on the top of said upright posts without fastening or support of any kind whatever so as to give notice or warning of its unsafe position and condition,</p> <p>(e) In negligently and carelessly removing said stick of timber from beneath said engine bed.</p> <p>(f) In failing to exercise proper care in the removal of said stick of timber by fastening said steel cable in the middle of said timber and thus equalizing its weight.</p> <p>(g) In failing to cross-tie or otherwise securely fasten said cable around said stick of timber so as to prevent the slipping thereof.</p> <p>(h) In failing to properly provide a safe means of removal of said stick of timber from beneath said engine bed.</p> <p>(i) In failing to provide a safe method of controlling the weight of said stick of timber after it was brought above the deck of said dredge, and in failing to adopt proper precautions to prevent its striking said crossbeam.</p> <p>(j) In negligently and carelessly allowing said stick of timber to strike said crossbeam.</p> <p>By reason of the killing of petitioner’s husband through the carelessness and negligence of the defendant, she has been damaged in the sum of $25,000. Whereupon your petitioner prays that she may have judgment against said defendant for said sum of $25,000.</p> <p>The second count of the petition is substantially the same as the first count, except that it is averred, as the proximate cause of the injury, that the defendant had negligently placed a guy rope of the derrick beneath the crossbeam, so that when the timber was raised, the guy rope became taut and knocked the crossbeam down, causing the death of petitioner’s husband.</p> <p>The defendant filed a general demurrer, that “the petition has not set forth any legal cause of action against this defendant.” The court below sustained the demurrer.</p>

<p>1. Aliens (§ 59*)—Prosecution Under Immigration Laws—Burden of Proof.</p> <p>In a prosecution under Immigration Law (Act Feb. 20, 1907, c. 1134, 34 Stat. 904 [U. S. Comp. St. Supp. 1911, p. 510]) § 19, requiring aliens brought to this country in violation of law to be sent back at the expense of the owners of the vessel on which they came, and making it a misdemeanor to make any charge for their return, the burden is on the government to prove that the aliens involved were brought to this country In violation of law and were ordered deported by competent authority.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 115, 116; Dec. Dig. § 59.*]</p> <p>2. Aliens (§ 57*)—Offenses Against Immigration Laws—Acts Constituting.</p> <p>Under Immigration Law (Act Feb. 20, 1907, c. 1134, 34 Stat. 906 [U. S. Comp. St. Supp. 1911, p. 515]) § 26, providing that any alien liable to exclusion because likely to become a public charge, or because of a physical disability other than tuberculosis or a loathsome or dangerous contagious disease, may be admitted in the discretion of the Secretary of Commerce and Labor upon the giving of a bond, the selling of return tickets to aliens who, though found by a board of special inquiry to be incapable of self-support and likely to become a public charge, were admitted by the Secretary of Commerce and Labor under bond', was not a violation of section 19, prohibiting the making of any charge for the return of aliens brought to this country in violation of law.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. § 114; Dec. Dig. § 57.*]</p> <p>3. Criminal Law (§ 322*)—Presumptions—Regularity of Official Acts.</p> <p>Though there was no specific proof of the various steps which brought the matter of admitting an alien under bond before the Secretary of Commerce and Labor, it appearing that he admitted them under bond, it would be presumed that the matter came before him in the regular course of official business in conformity with the immigration regulations and. that he acted in conformity to law.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 728; Dec. Dig. § 322.*]</p>

<p>1. Admiralty (§ 115*)—Appeals—Preservation op Recobd.</p> <p>In admiralty suits which are heard de novo on appeal, it is. important that charts referred to by witnesses, and on which locations pointed out are marked, should be preserved in the record.</p> <p>[Ed. Note.—For other cases, see Admiralty, Cent. Dig. §§ 743-745; Dec. Dig. § 115.*]</p> <p>2. Towage (§ 11*)—Collision between Tows—Mutual Faults.</p> <p>A tug, with three barges abreast in tow on two hawsers, was passing westward through Hell Gate, and was near Negro Point, where the port hawser parted, and it became necessary to anchor while straightening out the tow. While so anchored, another tug with tows came around the point from the westward on an ebb tide, and one of her tows came into collision with one of those of the disabled flotilla. Held,, on the evidence that both tugs were in fault; the moving one for not being more carefully navigated, and the other for not hearing and answering the bend signal of the first, which in the condition of the tide could not stop after rounding the point.</p> <p>[Ed. Note.—Nor other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*</p> <p>Collision with or between towing vessels and vessels in tow, see note to The John Englis, 100 C. C. A. 581.]</p>

Appeals from the District Court of the United States for the Southern District of New York. Suit in admiralty by Andr. Olsen, as owner of the steamship Bergenhus, against the United States Shipping Company, with cross-libel. From the decree, both parties appeal.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>This cause comes here upon cross-appeals from a decree in favor of' libelant for $813.67. The libel charges negligent towage in leaving the tow at an unsafe berth, where at low tide she grounded on a rocky bottom. The claimant appeals on the ground that no negligence has been shown on the part of the tug; libelant appeals on the ground of insufficient damages. The opinion of the District Judge will be found in 196 Fed. 553.</p>

Meek, Judge. Mary Taliaferro was convicted of carrying on the business of a malt •retail liquor dealer without having paid the special government tax therefor, and she brings error.

<p>1. Courts (§ 101*)—Preliminary Injunction—Federal Courts—Authority to Grant.</p> <p>In a suit by a railroad company to annul an order of the State Railroad Commission because it violates the Constitution, requiring physical connection between complainant’s railway and the railway of another company at a particular point in the state, a preliminary injunction could lawfully be granted only by the judge of the District Court and two other federal judges called to sit with him, as provided by Judicial Code, § 266 (Act March 3, 1911, e. 231, 36 Stat. 1162 [U. S. Comp. St. Supp. 1911, p. 236]).</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 344-350, 629; Dec. Dig. § 101.*]</p> <p>2. Courts (§ 101*)—Hearing on Merits—Jurisdiction.</p> <p>Since, in a suit by a railroad company to enjoin an order of the State Railroad Commission, requiring physical connection with ánother line, Judicial Code, § 266 (Act March 3, 1911, e. 231, 36 Stat. 1162 [ü. S. Comp. St. Supp. 1911, p. 236]), only requires that three federal judges shall pass on an application for an interlocutory injunction, where it appeared that complainant waived its prayer for an injunction pendente lite, the District Judge alone had jurisdiction to try and determine the case on its merits.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 344-350, 629; Dec. Dig. § 101.*]</p>

Foster, Judge. Bill by Charles Phillips against Henry L. Zander and others. From a decree overruling a demurrer to the bill and granting a preliminary injunction as prayed, defendants appeal.

<p>In Error to the District Court of the United States for the District of Minnesota; Charles A. Willard, Judge.</p> <p>Criminal prosecution by the United States against George Savage. Judgment of conviction, and defendant brings error.</p>

<p>Appeal and Error (§ 204*)—Beception op Evidence—Failure to Object.</p> <p>An assignment of error, based on the admission of evidence to which no objection was made, which was in support of a claim pleaded in plaintiff’s declaration, and where no special instruction was requested as to such demand, cannot be sustained.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278, 1280, 1569; Dec. Dig. § 204.*]</p>

In the matter of involuntary bankruptcy proceedings against the Tennessee Construction Company. From a decree dismissing the petition (207 Fed. 203), the American Surety Company of New York and others appeal.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing a suit in equity for alleged infringement of reissued letters patent No. 13,421 granted May 21, 1912, to Robert H. Hazeltine, for improvements in machines for reseating valves. The original patent No. 918,049 was issued to Hazeltine on April 13, 1909. The opinion of the District .ludge will be found in 205 Fed. 760.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding a patent valid and infringed. The patent is No. 854,670 granted May 21, 1907, to Frederick V. Schiodt for apparatus for the extraction of dust from carpets and other articles. The opinions of the District Court will be found in 204 Fed. 99, 102.

<p>. At Law. Action by Ross Jones against the Casey-Hedges Company and others. The Casey-Hedges Company having removed the cause to the federal court, plaintiff moves to remand. Denied, for further hearing on affidavits.</p> <p>This, is a suit for damages for personal injuries in the sum of ten thousand dollars, which was commenced by the plaintiff in the Circuit Court of Hamilton County, Tennessee, by the issuance of summons against the Casey-Hedges Co., The Casey-Hedges Manufacturing 'Co. and Lloyd Jones, as • defendants, Before the plaintiff’s declaration had been filed in the State court the defendant Casey-Hedges Co. seasonably presented to the State court, after due notice, a petition for the removal of the suit to the United States District Court, alleging that there was in said suit a controversy wholly between citizens of different States, that is, between the petitioner, a citizen and resident of the State of Ohio, and the plaintiff, a citizen and resident of the State of Tennessee, and that its co-defendants Lloyd Jones and The Casey-Hedges Manufacturing Co., both citizens and residents of Tennessee, had been fraudulently and improperly joined as co-defendants for the sole purpose of defeating the jurisdiction of the Federal Court, the petition setting forth in detail the alleged lack of connection on the part of said co-defendants with the injuries received by the plaintiff and entire absence of responsibility therefor. A transcript of the record from the State court having been filed in the Federal Court, the plaintiff moved to remand the case to the State court on two grounds: 1. “Because it appears that the plaintiff and one of the defendants sued, to-wit, Lloyd Jones, are both residents of said County and State, hence this court is without jurisdiction.” 2. “Because this is a suit to recover on a tort, in which it is shown that defendants Casey-Hedges Company and Lloyd Jones are jointly liable to plaintiff, and this being true, and it further appearing that plaintiff and said Lloyd Jones are residents of Hamilton County, and were such residents at and prior to the institution of the suit, the defendant company is not entitled to remove this cause to this court.”</p>

<p>1. Judgment (§ 342*)—Vacation—Time.</p> <p>A federal district court is without power to vacate or open a judgment after expiration of the term at which it was passed except to correct clerical errors, errors of mere form, or errors of fact which might have been corrected under the English writ of error coram vobis.</p> <p>[Ed. Note.—For other eases, see Judgment, Cent. Dig. §§ 668-671; Dec. Dig. § 342.*]</p> <p>2. Courts (§§ 363, 365*)—Vacation—Power of Court.</p> <p>The power of a federal district court .to set aside a judgment after the term, as distinguished from procedure, can neither be conferred nor withheld by the statutes of a state or the practice of the state courts.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 939-950, 952, 955, 969-971; Dec. Dig. §§ 363, 365.*]</p> <p>3. Judgment (§ 403*) — Vacation After Term — Mode of Relief — Equity Suit.</p> <p>A judgment rendered against plaintiff for want of prosecution could only be set aside after the term by suit in equity.</p> <p>[Ed. Note.—For other cases,' see Judgment, Cent. Dig. § 764; Dec. Dig. § 403.*]</p>

•In Admiralty. Suits by the State of Maryland, to the use of Frances Goralski, widow, and Mary Goralski, infant, Joseph Gielner, and Andrew Gielner, against the General Stevedoring Company, the Joseph R. Foard Company of Baltimore City, the Mayor and City Council of Baltimore City, and the Munson Steamship Line, and by Gustav Lies against the same respondents and the Maryland Steel Company, with sixteen other cases.

<p>In Equity. Suit by the St. Louis & San Francisco Railroad Company and others against the City of Tulsa and others. On motion for preliminary injunction.</p>

In Equity. Suit for specific performance of a contract by the A. B. Dick Company against Couis E. Fuller. On final hearing. Decree for complainant. • This is a suit to enforce specific performance of a contract between the parties and to restrain the breach thereof.

<p>Action by the Maine Northwestern Development Company against the Northern Commercial Company. On motion to strike an affirmative defense.</p>

<p>Suit by Charles E. Interínela and the American Surety Company against David Perkins to enjoin the collection of a judgment at law. On motion to dismiss.</p>

<p>At-Law. Action by the Power 8z Irrigation Company of Clear Lake, an Arizona corporation, against the Bank of Woodland and others. On demurrer to complaint.</p>

<p>1. Aliens (§ 54*)—Deportation—Warrant—Grounds—Hearing.</p> <p>A warrant for the deportation' of an alien cannot be sustained on a ground concerning which he has been accorded no hearing.</p> <p>[Ed. Note.—For other cases, see Aliens, Gent. Dig. § 112: Dec. Dig. § 54.*]</p> <p>2. Aliens (§ 32*)—Chinese Persons—Bight to Be-Enter.</p> <p>Chinese Begulations, Buie-3, provides that Chinese aliens shall be examined as' to their right of admission under the law governing immigration as well as under the laws relating to the exclusion of Chinese, first, to determine their right to enter as ordinary aliens, and then their status under the Chinese exclusion laws and regulations. Held, that where a Chinese resident of the United States, in preinvestigation proceedings in advance of his departure from the United States on a trip to China, complied with every requirement of the law to establish his status as a Chinese person entitled to depart from and return to the United States, and the immigration officers at that time failed to inquire into his status as an ordinary alien, an examination as to his right to re-enter the United States should be limited to bis rights under the Chinese exclusion laws and regulations.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. § 32.*]</p> <p>3. Aliens (§ 27*)—Chinese Persons—Bight to Be-Enter—Hearing.</p> <p>The Chinese Exclusion Law (Act Sept. 13, 1888, c. 1015, § 13, 25 Stat. 479 [U. S. Comp. St. 1901, p. 1317]) provides that any Chinese person found unlawfully in the United States may be arrested on a warrant issued on a complaint filed by any party on behalf of the United States, by any justice, judge, or commissioner of a United States court, or before any United States court, and when convicted on a hearing, shall be removed to the ‘country whence he came, etc. Held, that where a Chinese alien had complied with all the laws and regulations governing his right to depart from the United States and return thereto on a preinvestigation before departing, under the Chinese exclusion laws, he could not be deported after readmission into the United States on the ground that his original entry had been surreptitious in violation of the Immigration Law (Act Cong. Feb. 20, 1907, c. 1134, 34 Stat. 898 [U. S. Comp. St. Supp. 1911, p. 499]) without a hearing before a justice, judge or commissioner.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 85-87; Dec. Dig. § 27.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Sarah Horwitz Goldstein. On appeal from a recommendation of a special master that a composition be not confirmed.</p>

<p>Collision (§ 100*)—Steam Vessels in Fog—Excessive Speed.</p> <p>A tug, proceeding from the Brooklyn shore to pass around the Battery in the early morning in a fog, held, on the evidence, solely in fault for a collision with another tug which was coming around the Battery from North river to a pier a short distance above the Battery, on the ground that she was going at excessive speed.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 213-215; Dec. Dig. § 100.*]</p>

Petition for writ of habeas corpus for discharge of one Ung King Ieng, a Chinese alien, sometimes referred to as Lin How. On demurrer to petition.

In Admiralty. Suit by Frank Morgan against the steamship President; the Pacific Coast Steamship Company and the Pacific Coast Company, claimants. On motions by libelant for leave to prosecute in forma pauperis, and by claimants for stay of suit until payment of costs of prior action.

Applications by Henry F. Marshall for writs of habeas corpus on behalf of Radha Singh and others to procure their release from custody under a deportation warrant.

<p>In Equity. Suit by William B. Spencer against the Babylon Railroad Company. On motion to confirm master’s report disallowing claim of J. Edward Gerety.</p>

<p>Salvage (§ 10*)—Right to Compensation—Service Rendered to Burning Car Float. v</p> <p>A tug, which assisted others in keeping down a fire on a car float and the cars thereon until the arrival of the fireboats of the city, held entitled to a salvage award for the service.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. §§ 18-20; Dec. Dig. § 10.*]</p>

<p>1. Railroads (§ 351*)—Crossing Accidents—Actions—Instructions—Contributory Negligence.</p> <p>In an action for the death of a person struck by a south-bound train at a crossing, instructions that, if he started right back of a north-bound freight train on a track between him and the south-bound train, to cross within a few feet, that would be negligence, and he could not recover, that, if he could have waited and allowed the freight train to pass and escape injury, but did not, and started as soon as the train was a few feet over the crossing, he could not recover, that, if he started to drive upon the tracks when the freight train was only two or three yards from the crossing, to find for defendant, that, if the only obstruction to his view of the approaching train was the freight train, or the smoke therefrom, to find for defendant, if the smoke or steam was of a temporary nature, and it was his duty to await the removal of such obstructions before attempting to cross, placed a greater burden of care upon decedent than was warranted, since the use of the expression “a few feet,” because of its indefiniteness, was consistent with a movement of the freight train far enough to permit a clear view of the track for a sufficient distance.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.*]</p> <p>2. Railroads (§ 351*)—Crossing Accidents—Actions—Instructions—Contributory Negligence.</p> <p>In an action for the death of a person struck by a south-bound train at a crossing, an instruction that, if the only obstruction to decedent’s view of the approaching train was a north-bound freight train, or the smoke therefrom, and if this was of a temporary nature, and it was his duty to await the removal of such obstruction before attempting to cross, to find for defendant, was erroneous, where there was testimony that the smoke settled toward the south-bound track, as it failed to hypothesize decedent’s knowledge of the existence of the smoke as a temporary obstruction to the view, and he would not be negligent in failing to observe an approaching train concealed by the smoke, unless he knew of its presence.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.*]</p> <p>3. Railroads (§ 347*)—Crossing Accidents—Actions—Evidence.</p> <p>In an action for the death of a person in a crossing accident, where negligence was alleged in failing to maintain a watchman, gates, or electric warning bell, and in running the train- at a speed of 50 miles an hour, evidence as to other accidents at such crossing, as to complaints by the public authorities to defendant subsequent to such accidents, relative to the claimed dangerous character of the crossing, with the request that gates or watchmen be maintained, and as to narrow escapes from accidents, so far as notice to defendant could be shown, by express information or general public notoriety, should have been admitted to show the dangerous character of the place and defendant’s knowledge thereof.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1124-1137; Dec. Dig. § 347.*]</p> <p>4. Railroads (§ 350*)—Crossing Accidents—Actions—Questions for Jury.</p> <p>Whether common prudence and a due regard for the safety of travelers requires gates or a flagfoan at a railroad crossing, as being especially dangerous, is generally a question of fact for the jury, under all the circumstances of the case.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]</p> <p>5. Railroads (§ 307*)—Crossing Accidents—Liability—Duty to Maintain Gates or Flagmen.</p> <p>A jury would not be warranted in finding that a railroad company should maintain gates or flagmen at ordinary country crossings.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 972-977, 979, 980; Dec. Dig. § 307.*]</p> <p>6. Railroads (§ 307*)—Crossing Accidents—Liability—Duty to Maintain Gates or Flagmen.</p> <p>Gen. Code Ohio, § 588, authorizing the Railroad Commission to require gates, an alarm bell, or a flagman at crossings declared by it to be dangerous, does not, as a matter of law, relieve the railroad company from liability for a failure to adopt such precautions as the particular circumstances require in the absence of an express direction by the commissioner.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 972-977, 979, 980; Dec. Dig. § 307.*</p> <p>Duty to give warning signals at crossings, see note to Chesapeake & O. Ry. Co. v. Steele, 29 C. C. A. 90.]</p> <p>7. Railroads (§ 347*)—Crossing Accidents—Actions—Evidence.</p> <p>In an action for death in a crossing accident, in which negligence was alleged in failing to maintain a watchman, gates, or an electric warning bell, evidence as to the practice of running passenger trains at a high speed over such crossing on a downgrade was admissible, in connection with evidence as to the number of tracks, the grade, the amount and kinds of highway travel and railroad traffic, and prior accidents and near accidents resulting from the nature of the crossing, on the question of whether the crossing was unusually dangerous.</p> <p>[Ed. Note.—For other cases, see Railroads, Gent.' Dig. §§ 1124-1137; Dec. Dig. § 347.*]</p>

In ErrQr to the District Court of the United States for the Eastern District of Texas; Gordon Russell, Judge. Action at law by Cornelia G. Goodrich and others against the Houston Oil Company of Texas and others; Judgment for plaintiffs, and defendants bring error.

<p>On Cross-Appeals from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. M. Smith, Judge.</p> <p>In Bankruptcy. In the matter of E. U. Moore & Co., bankrupts. From an order relative to the disposition of property subject to a chattel mortgage, the Bank of Dillon and William Murchison, trustee in bankruptcy, and others bring cross-appeals.</p> <p>Recorded in the office of the clerk of the court of common pleas of Dillon county, S. C., as of June 10, 1912, is a paper in these words:</p> <p>“State of South Carolina, County of Dillon.</p> <p>“$10,000.00. Dillon, S. C., May 27th, 1912.</p> <p>“On the 1st day of October after date we promise to pay to the order of the Bank of Dillon ten thousand dollars at the office of the said bank with interest and after maturity at the rate of eight per cent, per annum. And in case the said debt is not paid at maturity we promise to pay all expenses incurred in collecting same, including ten per cent, attorneys’ fees in case the same is placed in the hands of attorneys, and all costs of any litigation incurred in the collection of said debt, and to secure the payment of the said debt, interest, attorneys’ fees and costs aforesaid, we have bargained, sold and released and mortgaged, and do hereby bargain, sell, release and mortgage to the said the Bank of Dillon, all of our entire stock of general merchandise, and fixtures, together with all accessions that may be made to said stock of goods, wares, merchandise and fixtures from time to time, also accounts which here and hereafter accrue from the sale of said stock of goods, wares and merchandise, and all other accounts no't heretofore transferred, said property being located in the store of Mamie P. Moore on the west corner of Main and First avenue. And if the said goods and chattels shall in any way be removed from the usual place, of same, or deteriorate in value, be abused or mistreated, or the security becomes insufficient, then the said the Bank of Dillon, their heirs and assigns, shall have the right to deem said debt due and payable and seize all or any portion of said goods and chattels, and the same to sell upon giving five days’ notice by posting the same in three public places in said county and apply the proceeds of said sale to the payment of said debt, interests and costs, and in that event we promise to deliver said goods and chattels to the said the Bank of Dillon, their heirs and assigns, for the purpose aforesaid, hereby waiving all claims which we might have thereto.</p> <p>“In witness whereof, we have hereunto subscribed our name and affixed our Seal this the 27th day of May, A. D. 1912.</p> <p>“E. B. Moore & Co. [L. S.] “By-E. B. Moore, Prest., [E. S.]</p> <p>“By E. H. Cottingham, Sec. & Treas.</p> <p>“Executed in the presence of “C. C. Graham.</p> <p>“Alice Scott.</p> <p>“State of South Carolina, County of Dillon.</p> <p>“Personally appeared before me C. C. Graham, and made oath that he saw the within named E. L. Moore & Co., sign, seal and as their act and deed deliver the within written deed, and that he with Alice Scott witnessed the execution thereof. “C. C. Graham.</p> <p>“Sworn to before me this 27th day of May, 1912.</p> <p>“Jno. C. Bethea, [L. S.]</p> <p>C. C. C. P.”</p> <p>Oh February 5, 1913, the Bank of Dillon filed its complaint in the court of common pleas for the county of Dillon, S. C., against E, L. Moore & Co., corporation, setting forth the execution of the foregoing paper, charging default in its conditions, praying for the appointment of a receiver and an order of sale. Receiver was appointed and sale ordered by this state court, and such sale was advertised. Before made, however, on February 15, 1913, certain creditors filed a petition in involuntary bankruptcy against the E. L. Moore & Co. corporation, and seven days thereafter filed an additional petition praying an injunction inhibiting such sale under the state court proceeding and assailing the validity of this paper as a mortgage. Such’ injunction was granted after reference had to ascertain the facts, and upon hearing had July 19, 1913, the court below held in effect that, as against the corporation and all its creditors existing at the date of its execution, this instrument was to be upheld and enforced in equity as a valid mortgage, save and except as to accounts receivable referred to therein, but as to all creditors, whose debts accrued subsequent to the date of the execution thereof, to be invalid, null, and void. Thereupon the Bank of Dillon and the creditors have taken their appeal and cross-appeal, respectively, from this ruling. ></p>

<p>1. Judgment (§ 17*)—Validity—Jurisdiction over Parties.</p> <p>Under the law of Indiana, a decree is a nullity as against a defendant as to whom the summons was returned “not found” and who was not otherwise served, and also as against the interests of other defendants named but who had died before the suit was commenced.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 25-33, 157, 422; Dec. Dig. § 17.*]</p> <p>2. Process (§ 103*)—Publication—Designation—Maiden Name.</p> <p>Under the law of Indiana, a suit to quiet title may be maintained against a nonresident married woman by her maiden name, where she was last known in the state by that name, and where the instrument through which she claims is of record in that name.</p> <p>[Ed. Note.—For other cases, see Process, Cent. Dig. §§ 129, 131; Dec. Dig. § 103.*]</p> <p>3. Perpetuities (§ 4*)—Creation oe Remainder—Validity.</p> <p>Under Rev. St. Ind. 1843, p. 425, § 68, providing that “no remainder shall be created upon an estate for life of any other person or persons than that of the grantee or devisee of such estate, unless such remainder be an estate in fee,” a deed to a trustee creating a remainder in fee after the termination of a life estate reserved in the grantor and a succeeding life estate in his wife is valid.</p> <p>[Ed. Note.—For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. § 4.*]</p> <p>4. Judgment (§ 686*)—Persons Concluded.</p> <p>A consent decree against the grantor sustaining the validity of a deed is binding on him and his subsequent devisee of the land conveyed therein.</p> <p>LEd. Note.—For other cases, see Judgment, Cent. Dig. § 1209; Dec. Dig. § 686.*]</p> <p>5. Life Estates (§ 8*)—Adverse Possession—Claim of Fee—Notice to Remaindermen.</p> <p>The repudiation by a life tenant of his tenancy and his claim to an estate in fee does not make his possession or that of his grantee adVerse as to the remaindermen until notice of the repudiation is brought home to them.</p> <p>[Ed. Note.—For other cases, see Life Estates, Cent. Dig. §§ 24-28; Dec. Dig. § 8.*]</p> <p>■6. Equity (§ 87*)—Laches—Following Statute oe Limitations.</p> <p>The equitable doctrine of laches does not necessarily follow the statute of limitations, and a complainant may be denied relief in equity although less than the statutory period of limitations has run against his claim.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 242-244, 395,; Dec. Dig. § 87.*]</p> <p>7. Quieting Title (§ 29*)—Cboss-Bill—Laches—Pakties Against Whom Laches May be Pleaded.</p> <p>The owner of a quarter section of land in 1846 conveyed the same in trust to be held for the sole use and benefit of himself during his life and áfterward of his wife during her life, with remainder in fee to her children by a former marriage. He died in 1849 leaving a will by which, after devising other land, he made his wife his sole devisee and legatee. The widow and her children continued to reside on the land for a number of years, and in 1S65 she sold the same for its full value, and gave a warranty deed. At that time her children by her first marriage were all of age and some or all lived with her. From that time her grantee and his successors in interest were in possession of the land and made improvements and paid the taxes thereon. The widow died in 1897. In 1909 her surviving children on an ex parte .application secured the appointment of a new trustee under the deed of trust and an order for the execution of a deed by him to them which they placed on record. After the death of their mother the land was sold by the claimants in possession to others who bought in good faith and paid full value therefor, and had increased in value from $8,000 to $20,000. The adverse claimants in possession brought a suit to quiet title in which the remaindermen filed a cross-bill. There was evidence tending to show that their mother had always claimed the land in fee under her husband’s will and not under the trust deed, but owing to the long lapse of time all persons who were in position to know the facts, and under what arrangement, if any, between her’ and defendants it was sold, were dead. Held, that defendants were in effect the attacking parties, and their cross-bill was subject to the defense of laches, and that under the circumstances their delay of 12 years before asserting their claim barred them of any right to recover the land and the rents and profits thereof.</p> <p>[Ed. Note.—.For other cases, see Quieting Title, Cent. Dig. § 63; Dec. Dig. § 29.*]</p>

<p>In Error to the District Court of the United States for the District of North Dakota; F. A. Youmans, Judge.</p> <p>Prosecution of the Northern Pacific Railway’ Company for failing to correct an omission of an instance of excessive service of its employés in its monthly report. From a conviction, the railroad company brings error.</p>

<p> (Syllabus by the Court.) </p> <p>1. Master and Servant (§ 18*)—Violation of Hours of Service Act—Defense.</p> <p>The proviso of section 3 of the “Act to promote the safety of employés and travelers upon railroads by limiting the hours of service of employés thereon,” of March 4, 1907 (Act March 4, 1907, c. 2939, 34 ’Stat. 1415 [U. S. Comp. St. Supp. 1911, p. 1321]), commonly known as the hours of service act, exempts a common carrier from liability for the penalty specified therein when, in a case of casualty, unavoidable accident, or the act of Cod, it necessarily requires or permits a telegraph operator, train dispatcher, or other employe of their class to serve longer than the time limited for his service by section 2 of that act. •</p> <p>[Ed. Note.—-For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. § 13.*</p> <p>Hours of service of employés, see note to United States v. Houston Belt & T..Ry. Co., 125 C. C. A. 485.]</p> <p>2. Master and Servant (§ 13*)—Violation of Hours of Service Act—Defense.</p> <p>An operator at a day office was in service at a station where the general limit of his service expired at 10 p. m. December 11th, and the limit of his four hours excess service in case of emergency at 2 a. m. December 12th. An unavoidable accident caused a wreck before 10 p. m. December 11th, and necessitated the continuous service of the operator until the wreck could be cleared. A relief operator could have been procured at the time of the accident, but the company expected to clear the wreck by 11 p. m. December 11th. Every effort to clear it at once was made, but unforeseen and unavoidable difficulties delayed the clearance until 5 a. m., and necessitated the operator’s continued service until 6:35 a. m. December 12th. As soon as the delay was known, defendant attempted to procure a relief operator, but none could be found.</p> <p>Meld, these facts fail to deprive the defendant of its defense to an action for the penalty for the violation of the hours of service act that the continued service of the operator was necessarily rendered in a case of casualty or unavoidable accident.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. § 13.*]</p> <p>3. Pleading- (§ 214*)—Violation of Hours of Service Act—Demurrer to Answer—Effect as Admission.</p> <p>A demurrer to an answer, in which the defendant alleged “that through no fault or negligence of .the defendant company, or its agents or servants, a derailment occurred on the line of the defendant,” admits that, however high the degree of foresight and diligence required in relation to the derailment, the defendant exercised that degree, for so only could it be without fault or negligence.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent Dig. §§ 525-534; Dec. Dig. § 214.*]</p> <p>4. Statutes (§§ 174, 175, 190*)—Construction.</p> <p>The apparent and natural meaning of the terms of a statute is always to be preferred to any curious hidden signification deduced by the reflection and ingenuity of acute and powerful intellects. Where the language of a statute is unambiguous, and its meaning plain, no room is left for construction.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 254, 266, 269; Dee. Dig. §§ 174, 175, 190.*]</p> <p>5. Statutes (§ 185*)—Construction—Ambiguity.</p> <p>Where the legislative body makes no exception to a general and clear enactment, the conclusive presumption is that it intended to make none, and it is not the province of the courts to do so.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 264; Dec. Dig. § 185.*]</p> <p>6. -Statutes (§ 184*)—Construction—Purpose.</p> <p>A rational practical interpretation.of a statute, one which tends to promote the accomplishment of the purpose of the law, should be preferred to one which is unreasonable or impracticable, or that would hinder the accomplishment of that purpose.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 262; Dec. Dig. § 184.*]</p> <p>7. Statutes (§ 241*)—Penal Statutes—Essentials.</p> <p>A penal statute which creates a new crime and prescribes a punishment for it must clearly state the persons or acts denounced. A person who, or an act which, is nof by the expressed terms or plain meaning of the law clearly within the class of persons or within the class of acts it denounces will not sustain a conviction.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig.' §§ 322, 323; Dec. Dig. § 241.*]</p> <p>Hook, Circuit Judge, dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>1. Bankruptcy (§ 312*)—Disallowance of Claim—Grounds—Fraud Connected with Prior Composition.</p> <p>In 1899 H. made a composition agreement with his creditors and an agreement with A., one of them, which was unknown to the others, to pay his claim in full in consideration of his loan to H. of the money required to pay the other creditors the composition percentage of their claims, and in 1910 he was adjudged a bankrupt. Seld, these facts furnish no ground for the disallowance of A.’s claim against the estate of the bankrupt because the composition creditors never rescinded the voidable composition and had no cause of action against A., and H., the debtor, had voluntarily paid, after the execution of the composition, the moneys loaned him by A. to pay the other creditors.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 496-500; Dec. Dig. § 312.*]</p> <p>2. Compositions with Creditors (§§ 13, 22, 29*)—Enforcement—Rescission.</p> <p>Such a composition agreement, while executory, is not enforceable and after execution is voidable, not void, and creditors may rescind it and return, if practicable, to their former position, but they have no other remedy. The debtor may recover the excess above the composition percentage which he pays to the preferred creditor before the execution of the composition or the excess' which he is compelled to pay thereafter, but he may not recover the excess which he voluntarily pays it thereafter.</p> <p>[Ed. Note.—For other cases, see Compositions with Creditors, Cent. Dig. §§ 23-37, 64-67, 87-94; Dec. Dig. §§ 13, 22, 29.*]</p> <p>3. Chattel Mortgages (§ 6*)—Stipulations of Agency—Operation and Efeect.</p> <p>A mortgage of merchandise in use in trade and other property in Arkansas, which contains stipulations that the mortgagor’s property is conveyed and Surrendered to the possession of the mortgagee, that the mortgagor is to act as the agent of the mortgagee in the sale of the stock of merchandise on hand and to be purchased, that he is the agent and representative of the mortgagee in everything pertaining to the business, and that he will make statements and reports of the business and property to the mortgagee as requested, is not an absolute conveyance of the property to the mortgagee and the establishment of the relation of principal and agent between the mortgagee and mortgagor, but is, notwithstanding the stipulations regarding agency, a mortgage only.</p> <p>[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. §§ 23-41; Dec. Dig. § 6.*]</p> <p>4. Bankruptcy (§ 312*)—Disallowance of Claim—Fraud.</p> <p>H., an insolvent debtor, made false statements of his financial condition to creditors and commercial agencies and failed to state his debt to his largest creditor from time to time between August, 1899, and December, 1910, when he was adjudged a bankrupt. A., his largest creditor, knew he was insolvent, but hoped and believed that by loaning him more money it could enable him to make his business so prosperous that he could and would pay his debts. It continued to loan him money to pay his other creditors and to carry on his business until his debt to it had increased from $7,730.00 on September 1, 1901, to $238,835.40 more than the value of the security it had obtained for it, in December, 1910. Meanwhile it had taken three mortgages on his property to secure his debt to it which it had. recorded. It had never stated in response to inquiries by mercantile agencies, creditors of H., or others, the amount of Ms debt to it or its estimate of his financial condition, and had never made any false statements about these matters but had refrained from stating his indebtedness to it or its view of bis financial condition. Meld, A. had not been guilty of any breach of duty to, deceit of, or fraud upon any of the other creditors of Hawks which could or ought to estop it from proving its unsecured debt against the estate of Hawks and sharing in the distribution of its proceeds.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 496-500; Dec. Dig. § 312.*]</p> <p>5. Bankruptcy (§ 312*) — Disallowance of Claim — Fraud — Breach of Duty.</p> <p>A creditor must have been guilty of some moral turpitude or some breach of duty whereby other creditors were deceived to their damage to constitute such a fraud as will estop him from sharing with them in the distribution of the proceeds of the estate of his debtor in bankruptcy. A willful intent to deceive or such negligence as is tantamount thereto is an essential element of such an estoppel.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 496-500; Dec. Dig. § 312.*]</p> <p>6. Bankruptcy (§ 312*)—Disallowance of Claim—Breach of Duty—Fidu-</p> <p>ciary Relation.</p> <p>A creditor of an insolvent debtor is a competitor of his other creditors. He stands in no fiduciary or contractual relation to them, and he owes them no duty to inform them of his debtor’s financial condition or of the amount of Ms indebtedness to him.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 496-500; Dec. Dig. § 312.*]</p>

<p>1. Master and Servant (§ 121*)—Death of Servant—Guarding Machinery —Statutes—Failure to Comply—Negligence.</p> <p>Failure of a master to comply with Pa. Act May 2, 1905 (P. L. 355) § 11, requiring that machinery of every description shall be properly guarded, resulting in death of a servant, constitutes actionable negligence.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. § 121.*]</p> <p>2. Master and Servant (§ 121*)—Death of Servant—“Machinery”—Duty to Guard.</p> <p>Where an ice cutting mechanism consisted of a saw and carriage in combination, and hardwood wedges were used to hold the ice plates steady and keep the ice from splitting unevenly, and these, in the process of sawing, were liable to be struck by the saw and thrown from under the unguarded rear of the carriage with great force across the place where it was a servant’s duty to work, the carriage constituted “machinery of every description” within Pa. Act May 2, 1905 (P. L. 355) § 11, requiring that machinery of every description shall be properly guarded, so that a mere guarding of the saw did not show such a compliance with the statute, as a matter of law, as would preclude the master from liability for actionable negligence resulting in the death of an employs by being struck by one of such wedges, due to a failure to guard the carriage to protect from such flying wedges.</p> <p>[Ed. Note.-—For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. § 121.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4267-4269.]</p> <p>3. Master and Servant (§ 121*)—Injury to Servant—Guarding Machinery—Statutes.</p> <p>Act Pa. May 2, 1905 (P. L. 355) § 11, requiring that machinery of every kind shall be properly guarded, is to be construed broadly, in accord with its purpose to prevent avoidable harm, and not grudgingly.</p> <p>[Ed. Note.—For other eases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. § 121.*]</p> <p>4. Master and Servant (§ 121*)—Injury to Servant—Machinery Guards— “Properly Guarded.”</p> <p>Act Pa. May 2, 1905 (P. L. 355) § 11, requiring that machinery of every kind shall. be “properly guarded,” requires that machinery shall be effectively guarded in the light of the dangers to be anticipated.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Gent. Dig. §§ 228-231; Dec. Dig. § 121.*]</p>

<p>1. Bankruptcy (§ 76*)—Involuntary Proceedings—Persons Entitled to File Petition—“Creditor.”</p> <p>Where a debtor made an assignment for the benefit of creditors, creditors who became voluntary parties to the assignment contract were absolutely disqualified from filing an involuntary petition in bankruptcy based upon the assignment as an act of bankruptcy, since that would permit them to take advantage of their own wrong and, moreover, by assenting to the assignment contract they released their claims against the assignor and in place thereof accepted claims under the assignment, and therefore were not creditors within the provision authorizing creditors to file a petition in bankruptcy. ,</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 50, 56, 97, 99, 100; Dec. Dig. § 76.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1713-1727; vol. 8, pp. 7622, 7623.]</p> <p>2. Bankruptcy (§ 161*)—Preferences—Voidability—Computation of Four Months’ Period.</p> <p>An involuntary petition in bankruptcy based upon an assignment for the benefit of creditors as an act of bankruptcy and filed by creditors who voluntarily became parties to the assignment contract was void for want of proper petitioners, and an intervening petition thereafter filed by creditors not parties to the assignment contract could draw no support therefrom, and hence payments more than four months before the filing of the intervening petition were not preferential, though made within four months prior to the filing of such void petition.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 261-263; Dec. Dig. § 161.*]</p>

<p>1. Principal and Agent (§ 149*)—Acts Without Authority—Agent’s Liability.</p> <p>An agent is personally liable for fraudulent misrepresentations of authority, or for making a contract in which he assumes authority he knows he does not possess.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 553-555; Dec. Dig. § 149.*]</p> <p>2. Principal and Agent (§ 149*)—Acts of Agent—Lack oe Authority— Agent’s Personal Liability.</p> <p>One who assumes to act for another impliedly warrants that he is authorized to do so, so that, if he in fact lacks authority, he becomes personally liable to one who deals with him in good faith in reliance on the warranty, whether the agent knows he lacks authority or honestly believes he had authority when in fact he had none.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 553-555; Dec. Dig. § 149.*]</p> <p>3. Brokers (§ 94*)—Authority to Purchase Merchandise—Cancellation oe Contract.</p> <p>A broker authorized to purchase cotton seed at prices to be fixed from time to time by the principal, varying according to the market, after making a contract of purchase, had no authority to agree to cancellation thereof.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 136; Dec. Dig. § 94.*]</p> <p>4. Frauds, Statute oe (§ 115*)—Contract oe Sale—Memorandum—Signing.</p> <p>Under the Arkansas statute of frauds the memorandum of a contract of sale of merchandise need only be signed by the party to be charged, to wit: The seller on his contract to sell, or the buyer on his contract to accept and pay for the property.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 242-250; Dec. Dig. § 115.*]</p> <p>5. Frauds, Statute oe (§ 106*)—Contract oe Sale—Memorandum.</p> <p>Defendant, purporting to act for a corporation, having sold to plaintiff 25 cars of cotton seed through a broker, executed a memorandum reciting that the same confirmed the sale to the plaintiff through the broker of 25 cars of cotton seed to be shipped during the season to plaintiff at Memphis at ?11 per ton, the shipments to be made-from points specified and signed by defendant, acting for the alleged seller. Held, that the writing was not a mere offer to sell, but was a sufficient memorandum of a completed contract under the statute of frauds.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 193, 210, 211; Dec.- Dig. § 106.*]</p> <p>6. Sales (§ 374*)—Contract—Breach—Action eor Damages.</p> <p>Where defendant, after making a contract on behalf of a corporation for the sale of cotton seed to plaintiff, without authority, repudiated the contract, as did also the corporation which defendant purported to represent, and declined to proceed under it, plaintiff was entitled to treat such repudiation as a breach of the contract and sue at once for damages.</p> <p>[Ed. Note.—For other eases,. see Sales, Cent. Dig. § 1091; Dec. Dig. § 374.*]</p> <p>7. Sales (§ 384*)—Contract—Breach—Dama&es.</p> <p>Where defendant finally repudiated a contract for the sale of cotton seed on a specified date, the court did not err in selecting that date in an instruction on the plaintiff’s measure of damages, to wit: That plaintiff was entitled to recover’ the difference between the contract price and the market price on such date.</p> <p>[Ed. Note.—For other eases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. § 384.*]</p>

<p>In Error to the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Action at law by the Title Guaranty & Surety Company against William F. Schmidt and others. Judgment for defendants, and plaintiff brings error.</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Executors and Administrators (§ 223*)—Time eor Presenting Claims— Repeal of Statute.</p> <p>Section 1309, Statutes of Oklahoma 1893, required every executor or administrator- to publish a notice to creditors to present their claims against an estate to him, and prescribed the method of publication. Section 1310 required the time specified in the notice for the presentation of such claims to be six months after the date of the first publication of the notice in cases in which-the value of the estate exceeded $5,000, and four months in all other cases, and section 1312 declared that a claim on contract not presented within the time prescribed should be forever barred, except in cases immaterial here. Chapter 65 of the Session Laws of Oklahoma of 1910 amended section 1309, so that thereafter it provided that every executor or administrator should give notice to creditors of the deceased to present their claims to him within four months from the date of the notice, prescribed a different method of publication and a form of notice, and contained a declaration that all acts and parts of acts in conflict with that chapter were repealed. Meld, chapter 65 of the Session Laws of 1910 did not repeal section 1310 of the Statutes of Oklahoma 1893, and the time for the presentation of claims against estates of a value in excess of $5,000 remained six months from the date of the notice.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 767; Dec. Dig. § 223.*]</p> <p>2. Statutes (§ 181*)—Construction—Legislative Intent.</p> <p>The primary rule for the interpretation of a statute, the rule to which all others are subsidiary, is to ascertain and give effect to the intention of the legislative body expressed in the law. Courts may not assume or presume intents or purposes not fairly expressed in the statute, and then by judicial construction enact provisions to effect them. And the legal presumption' is that the legislative body has expressed its intention in the statute; that it intended what it expressed and nothing more.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 259, 263; Dec. Dig. § 181.*]</p> <p>3. Statutes (§ 161*)—Construction—Repeal by Implication.</p> <p>Where two statutes cover in whole or in part the'same subject, are not wholly irreconcilable, and the latter neither clearly expresses nor indicates an intent to repeal the earlier, they must stand together, effect must be given to each, and the earlier is not repealed by the later.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 230-234; Dec. Dig. § 161.*]</p>

<p>In Error to the District Court of the United States for the Western District of Missouri; William H. Pope, Judge.</p> <p>Cecilia Weddel, alias Rae Sheldon, was convicted of violating the White Slave Traffic Act, and she brings error.</p>

<p>Towage (§ 3*)—Tugs' Assisting Steamship to Dock—Liability foe Stranding.</p> <p>In a suit by the owner of a steamship against three tugs, employed to accompany her in proceeding under her own steam to her dock in New York harbor, and to dock her, to recover damages on account of her stranding because of the action of the flood tide, which caused her to sheer from her course, libelant held not to have sustained the burden resting upon it to prove that the navigation of the vessel had been put in charge of the tugs, or that the tugs caused the sheer, without which they could not be charged with responsibility therefor.</p> <p>[Ed. Note.—For other cases, see Towage, Cent. Dig. § 3; Dec. Dig. § 3.*]</p>

Appeals from the District Court of the United States for the Southern District of New York. Suit in admiralty for collision by the New York Sandy Hook Pilots’ Association and others, as owners of the pilot boat Ambrose Snow, against the steamship Delaware, the Clyde Steamship Company, claimant, with cross-libel. Decree for cross-libelant, and libelant appeals..

Suit in admiralty for collision by the Cornell Steamboat Company, as owner of the steam tug Edwin Terry, against the steam lighter Bayonne; the Central Railroad of New Jersey, claimant. Decree for respondent, and libelant appeals.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; James S. Young, Judge.</p> <p>Action by Alexander Blackas against the West Leechburg Steel Company. Judgment for plaintiff, and defendant brings error.</p>

B. Sheppard, Judge. Intervention by the Fourth National Bank of Macon, Ga., against E. Pringle Willingham, ■ trustee in bankruptcy of the estate of the Eester-Clark Shoe Company. From a decree denying the petition of intervention, the intervene? appeals.

<p>Collision (§ 90*)—Ferryboats in North River—Disobedience or Rules.</p> <p>A-collision at night between two ferryboats proceeding down North river nearly side by side held due solely to the fault of a third boat which had run out of her slip at Hoboken to reverse ends and was returning, and which, although the burdened vessel insisted on crossing ahead after her signal therefor had been refused, thus forcing the outer of the down-bound boats to crowd against the other.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 181-186, 196; Dec. Dig. § 90.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Criminal prosecution by the United States against Domenico Buffo. Judgment of conviction, and defendant brings error.</p>

• Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J." Whitaker Thompson, Judge. Suit in equity by the Clip Bar Manufacturing Company against the Steel Protected Concrete Company. From an order denying a preliminary injunction, complainant appeals.

<p>Post.Office (§ 48*) — Offenses — Indictment for Defositing Unmailable Letter—Knowledge.</p> <p>An indictment which charged that defendant knowingly deposited in the post office a letter, giving information as to where an abortion could be performed sufficiently charged that defendant knew of the contents of the letter.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. § 48.*</p> <p>Nonmailable matter, see'note to Timmons v. United States, 30 C. C. A. 79; McCarthy v. United States, 110 C. C. A. 548.]</p>

Killits, Judge. Suit in equity by the International Mausoleum Company against H. S. Sievert and others for infringement of patent. From a decree dismissing the bill on demurrer (197 Fed. 936), complainant appeals.

Suit in equity by the Goodwin Film & Camera Company against the Eastman Kodak Company. Decree for complainant, and defendant appeals. On appeal from an interlocutory decree dated September 9, 1913, holding valid and infringed claims 1, 6, 8, 10 and 12 of letters patent No. 610,861, granted" to Hannibal Goodwin of Newark, N. J., September 13, 1898, for improvements in photographic pellicles and processes of producing the same.

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>On motion for injunction.</p>

<p>1. Carriers (§ 25*) — Regulation oe Interstate Railroads — Commodities Clause oe Interstate Commerce Act—Separate Corporation.</p> <p>Under the decisions of the Supreme Court construing the commodities clause of Hepburn Act June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. Supp. 1911, p. 1287), and holding that it does not prohibit a railroad company from transporting in interstate commerce commodities manufactured, mined, produced, or owned at the time of shipment by a distinct bona fide corporation, merely because of the company’s ownership of stock in such corporation, irrespective of the extent of such stock ownership, a railroad company, owning and holding as lessee, at the time of the passage of the act, a large quantity of coal lands and extensive mines and storage and sales equipment throughout the country, which after such decisions, in good faith, organized a separate coal company to lease its outside equipment and buy the product of its mines at the breakers, in which corporation it owns no stock, but sold the greater part to its own stockholders, by whom much of it was afterwards sold to third persons, is not prohibited from carrying the coal from its mines after it has passed into the ownership of the coal company.</p> <p>[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 25.*]</p> <p>2. Carriers (§ 25*)—Regulation oe Interstate Railroads—Commodities</p> <p>Clause oe Interstate Commerce Act—Carriage oe Property Owned by Separate Corporation.</p> <p>It is insufficient to render such transportation unlawful that a comparatively small number of. persons own a controlling interest in both the railroad company and the coal company, and that some of the officers and directors of the two are the same, where the business of each is separately conducted, and no discrimination is shown to have been made by the railroad company in favor of the coal company as a shipper.</p> <p>[Ed. Note.-—For other cases, see Carriers, Dec. Dig. § 25.*]</p> <p>3. Carriers (§ 25*)—Regulation oe Interstate Railroads—Commodities</p> <p>Clause oe Interstate Commerce Act—Interest in Commodity Carried.</p> <p>A contract between the two companies, by which the coal company agreed to buy f. o. b. at the mines all of the coal mined or purchased by the railroad company which it desired to sell, and to pay for certain grades thereof a stated per cent, of the general average f. o. b. prices of such coal at tidewater points, does not leave the railroad company with “any interest, direct or indirect,” in the coal, after its delivery to the coal company, which renders its transportation unlawful under the statute, where all shipments are made pursuant to orders of the coal company, and the latter also has full control over the prices at which it sells.</p> <p>[Ed. Note.—For other cases, see Carriers, Dee. Dig. § 25.*]</p>

<p>1. Maeitime Liens (§ 56*) -r- Suits to Establish — Status and Rights of Moetgagee.</p> <p>A mortgage on a vessel is not a maritime lien, but is always subordinate to such liens. It is not even a maritime contract, and cannot be foreclosed in a suit in rem, but the mortgagee may intervene in such a suit and defend against the establishment of maritime,liens against the vessel.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent Dig. § 95; Dec. Dig. § 56.*]</p> <p>2. Maeitime Liens (§ 69*) — Suits to Enfoece — Distbibution of Surplus Fund.</p> <p>When a vessel has been sold in a suit to establish maritime liens, after the payment of such liens the court will direct the payment from the fund of such nonmaritime liens as have been proved, but cannot pay claims not supported by liens.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. § 107; Dec. Dig. § 69.*]</p> <p>3. Maritime Liens (§ 39*)—Assignment—Enforcement by Assignee.</p> <p>A claim entitled to a maritime lien may be assigned, and the lien enforced by the assignee in his own name.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. § 57; Dec. Dig. § 39.*]</p> <p>4. Assignments (§ 121*)—Assignment for Collection—Right of Assignee to Sue in his Own Name.</p> <p>An assignment of a claim for collection is an assignment for value, and vests such an interest in the assignee as entitles him to sue thereon in his own name.</p> <p>.[Ed. Note.—For other cases, see Assignments, Cent. Dig. §§ 200-205; Dec. Dig. § 121.*]</p> <p>5. Maritime Liens (§ 1*)—Definition.</p> <p>A “maritime lien” may be defined as a right of property in a ship adhering to it wherever it may go, vesting a right in the person whose claim is thereby secured to cause a sale of the ship in a proceeding directly against it in order to obtain satisfaction of his debt.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. § 1; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4377, 4378.]</p> <p>6. Maritime Liens (§ 26*)—Contracts Giving Liens.</p> <p>A contract to give rise to a maritime lien must be a maritime contract, and there must be a pledge of the ship for the performance of such cóntract either express, by implication from the circumstances, or arising therefrom by operation of law.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. § 39; Dec. Dig. § 26.*]</p> <p>7. Maritime Liens (§ 9*) — Maritime Services — Loading or Discharging Snip.</p> <p>The loading or discharging of a cargo is a maritime service which will support a maritime lien.</p> <p>[Ed. Note.—For other cáses, see Maritime Liens, Cent. Dig. § 13; Dec. Dig. § 9.*]</p> <p>8. Maritime Liens (§ 25*) — Furnishing “Necessaries” — Contract for Stevedoring.</p> <p>A stevedore contracting with the managing owner for the discharge of •a ship furnishes “necessaries” within the meaning of Act June 23, 1910, c. 373, §§ 1, 2, 36 Stat. 604 (U. S. Comp. St. Supp. 1911, p. 1192), and is entitled to a maritime lien thereunder.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. §§ 20, 31-36; Dec. Dig. § 25.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4693-4703.]</p> <p>9. Maritime Liens (§ 12*)—Extent of Lien—Incidental Expenses.</p> <p>A maritime lien for furnishing supplies or other necessaries to a ship includes expenses incidental thereto, such as the cost of delivering the supplies to the vessel.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. § 16; Dec. Dig. § 12.*] ''</p> <p>10. Seamen (§ 27*)—Wages of Master—Lien—British and Canadian Statutes.</p> <p>While by the general maritime law a master is not entitled to a lien for wages, under the Canadian Shipping Act, § 194, and the British Merchants’ Shipping Act of 1894, § 167, both of which give a master the same right as a seaman to a lien for wages, the master of a British ship, registered in a Canadian port, who contracted with the owner, a resident of Canada, is entitled to a lien for bis wages although an American, and employed in a port of the United States.</p> <p>[Ed. Note.—For other cases, see Seamen, Cent. Dig. §§ 4, 141, 157-169; Dec. Dig. § 27.*]</p> <p>11. Shipping (§ 69*)—Master—Termination -op Employment—Seizure op Vessel.</p> <p>The wages of the master of a ship terminated when she was taken into custody in proceedings to enforce liens against her.</p> <p>[Ed. Note.—For other eases, see Shipping, Cent. Dig. §§ 201, 293-307, 312, 313, 315, 317, 318; Dec. Dig. § 69.*]</p> <p>12. Maritime Liens (§ 14*)—Advances .by Master.</p> <p>The power of the master to hypothecate his vessel depends upon necea» sity, and he can claim a lien for advances only where they were made to discharge or prevent the incurring of a lien.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. § 18; Dec. Dig. § 14.*]</p> <p>13. Maritime Liens (§ 14*)—Disbursements by Master—Shore'Expenses.</p> <p>A master is not entitled to a maritime lien on the ship for his personal expenses on shore, although incurred in connection with the owner’s business.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. § 18; Dec. Dig. § 14.*]</p> <p>14. Maritime Liens (§ 9*)—Subject-Matter op Claim—Brokerage Charges.</p> <p>Claims against a ship for brokerage charges for aiding in the entry of the ship in customhouse, etc., are not secured by a maritime lien.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. § 13; Dec. Dig. § 9.*]</p> <p>15. Maritime Liens (§ 12*)—Supplies Furnished Crew After Seizure op Vessel.</p> <p>One furnishing provisions and lodging to the crew of a ship on shore after she has been seized in legal proceedings is not entitled to a maritime lien therefor.</p> <p>[Ed. Note.—For other eases, see Maritime Liens, Cent. Dig. § 16; Dee. Dig. § 12.*]</p>

<p>At Law. Action by Mary I. Sullivan against John B. Lloyd and others. On motion to remand to the state court.</p>

<p>1. Action (§ 47*)—Causes of Action—Joinder.</p> <p>Plaintiff was authorized, by Code Iowa 1897, §§ 3545, 3559 (5), to join, in the same action in different counts a cause of action against a carrier for an overcharge in freight and for switching and a cause of action for damages for shrinkage in value and expense of extra feed for animals transported, due to defendant’s alleged neglect in failing to transport them to destination in due time.</p> <p>[Ed. Note.—Ñor other cases, see Action, Cent. Dig. §§ 469, 470, 472-489; Dec. Dig. § 47.*]</p> <p>2. Removal of Causes (§ 2*)—Separable Controversy Clause—Effect.</p> <p>The separable controversy clause of the removal act (Judicial Code [Act March 3, 1911, c. 231, 36 Stat. 1094 (U. S. Comp. St. Supp. 1911, p. 141)]- § 28) does not enlarge the previous clauses of the section which particularly specify the suits which may be removed, but provides only that, if “in any suits” mentioned in the section there should be a controversy wholly between citizens of different states, the entire suit might he removed by a defendant or defendants actually interested in such controversy to the federal court.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 2, 3; Dec. Dig. § 2.*]</p> <p>3. Co orts (§ 263*)—Federal Courts—Jurisdiction.</p> <p>Where a suit is brought originally in a federal District Court bn both federal and nonfederal grounds, the court may not rightfully retain that part of the suit based on the nonfederal ground, unless that ground is merely incidental to the federal ground.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 799, 800; Dec. Dig. § 263.*]</p> <p>4. Removal of Causes (§ 49*)—Jurisdiction—Different Causes of Action.</p> <p>Plaintiffs brought suit against defendant railroad company in the state court, alleging two causes of action, one for an excess freight charge on a shipment of live poultry from Storm Lake, Iowa, to Chicago, 111., for $9 overcharge for switching the ear, and another for $47 as damages for shrinkage in value and -for expense of extra feed for the poultry in transit, due to defendant’s alleged neglect in failing to carry the car to destination In due time. Held that, since federal jurisdiction did not obtain in any event as to the second cause of action, the suit was not re-, movable, though the first cause of action alone might have been removable, as arising under the act to regulate commerce as amended.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 95-99; Dec. Dig. § 49.*]</p>

<p>Maritime Liens (§ 25*)—“Supplies or Other Necessaries”—Articles for Slop Chest oe Fishing Vessel. „</p> <p>Articles furnished on the order of the master and representative of the owner to supply the slop chest of a vessel, about to sail on a season’s fishing trip of four or five months’ duration, are “supplies or other necessaries,” within the meaning of Act June 23, 1910, e. 373, § 1, 36 Stat. 604 (U. S. Comp. St. Supp. 1911, p. 1192), for which such section gives a lien on the vessel.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. §§ 20, 31-36; Dec. Dig. § 25.*]</p>

<p>Courts (§ 313*)—Federal Courts—Jurisdiction—Diversity oe Citizenship.</p> <p>Where, after the filing, but before the dismissal, of a stockholder’s bill by a citizen of Ohio against a California corporation to set aside a transfer of the corporation’s property for alleged fraud, complainant’s attorneys applied on behalf of 15 other stockholders, all but 4 of whom- were residents of California, for leave to intervene, and, this being granted, filed a bill of intervention for them identical with the original bill, a motion, after dismissal, to file an amended bill will not be granted, where it would result in a suit in which there would be 4 nonresident plaintiffs and 12 plaintiffs citizens of the state.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 359; Dee. Dig. § 313.*]</p>

Application by Chin Fong for a writ of habeas corpus to obtain his discharge from a warrant for his deportation to China. On demurrer to writ.

Call, Judge. Action by Nina F. Patterson and another against the Jacksonville Traction Company. Judgment for defendant upon a directed verdict, and plaintiffs bring error. Suit was brought by the plaintiff in error, Nina F. Patterson, joined by her husband, hereinafter referred to as plaintiffs, to recover damages of the defendant in error, hereinafter referred to as defendant, for injuries by her received while a passenger on one of its cars.

<p>1. Contracts (§ 232*)-^Contract foe Repairing Vessel—Method of Determining Compensation.</p> <p>Libelant made a bid for the making of repairs on respondent’s steamship in accordance with specifications furnished by respondent. Respondent thought the bid too high, and it was then agreed that it should put a timekeeper on the work which should be done on a time and material basis at its reasonable value, but that if done according to the specifications it should not cost respondent more than the sum named in the bid. In doing the work the specifications were by mutual consent departed from in so many respects and to such an extent that it was impossible to apportion the work between what was done within the bid and that which was without and beyond it. Held,, that under the agreement 'libel-ant was entitled to recover for the entire work on a quantum meruit on a time and material basis.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1071-1094; Dec. Dig. § 232.*] .</p> <p>2. Evidence (§ 354*)—Cost of Repairing Ship—Workmen’s Time Cards.</p> <p>Under the system followed in a shipbuilding and repair works, in order to keep track of the work and material expended on each particular job, each job was numbered and each workman turned in daily to his foreman a time card showing the length of time he had worked on a particular numbered job and the kind of work he had done. This card was cheeked by the foreman. Material cards or orders issued by the foremen on which material was issued from the storeroom also showed the number of the job for which it was required. From these cards and orders daily sheets relating to each job were prepared and the items charged- therefrom on the books. Held, that in a suit to recover for repairs made on a ship, on a time and material basis, such time and material cards, properly identified by the workmen who made them or the foreman who checked them, none of whom' had any present recollection of the items thereon, were admissible in evidence, as were also the daily sheets which had been submitted to and approved by the timekeeper employed on the work by the shipowner.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1432-1483: Dec. Dig. § 354.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Action by Etienne Saucier against the Columbia Box Company. Judgment for the plaintiff, and defendant brings error.</p>

<p>X Bankruptcy (§ 76*)—Involuntary Proceedings—Qualification of Petitioners—Estoppel.</p> <p>Creditors who, after the making of a general assignment in good faith by their debtor with knowledge of the facts, assented thereto, and assigned their claims to the assignee, which sold the property and incurred expense on the faith of the assent of the creditors generally, were estopped to join in a petition in bankruptcy against the debtor alleging the assignment as the sole act of bankruptcy, and the estoppel extends to purchasers of their claims who bought at the instance and with the money of another creditor for the sole purpose of joining it in the petition to make the required number.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 50, 56, 97, 99, 100; Dec. Dig. § 76.*]</p> <p>2. Judges (§ 56*)—Disqualification to Act—Waiver—Consent of Parties.</p> <p>Judicial Code, § 20 (Act March 3, 1911, c. 231, 36 Stat. 1090 [U. S. Comp. St. Supp. 1911, p. 133]), which requires a district judge when having any Interest in a cause, etc., “on application by either party” to take steps to secure the assignment of another judge to hear the case, does not prohibit a judge from acting nor declaré his judicial action void merely because of the existence of disqualifying ground, and where his interest in the matter to be determined is slight, and neither party objects, but both request him to proceed to avoid delay, he may properly and legally do so.</p> <p>[Ed. Note.—For other cases, see Judges, Cent. Dig. §§ 235-245; Dec. Dig. § 56.*]</p>

Van Valkenburgh, Judge. W. E. Blanton and W. W. Chinn were convicted of using the mails in aid of a scheme to defraud, and they separately bring error.

Marshall, Judge. Civil action for penalties by the United States against the San Pedro, Los Angeles & Salt Lake Railroad Company. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the District of Nebraska; Thos. C. Munger, Judge.</p> <p>Action by Ole Oleson against the Missouri Pacific Railway Company. Judgment for plaintiff, and-defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of Utah; John A. Marshall, Judge.</p> <p>Action by the United States of America against the Union Pacific Railroad Company. Judgment for the defendant, and the United States brings error.</p>

<p>Petition to Revise Order of the District Court of the United States for the District of Nebraska; Thomas C. Munger, Jud^e.</p> <p>In the matter of Allie *W. Thompson, bankrupt. Petition by I. E. Smith, trustee, to revise order allowing an exemption to the bankrupt.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit in equity by the Board of Trade of the City of Chicago against Thomas E. Price and others. Decree for defendant Price (179 Fed. 399), and complainant appeals.</p>

<p>Trial (§ 267*)—Requests for Instructions—Substitution by Court.</p> <p>The refusal of instructions requested by defendant in an action by a servant to recover for personal injuries held not error in view of an instruction given which was even more favorable to defendant on the theory upon which the instructions were asked.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 668-672, 674; Dec. Dig. § 267.*]</p>

<p>1. Constitutional Law (§ 309*)—Dub Process of Law—Prescribing Effect of Special Appearance.</p> <p>It was competent for the Degislature of Texas to enact a statute providing that one who appeared specially in an action to attack the service thereby submitted himself to the jurisdiction of the court, and such statute does not deny due process of law, since the defendant by appearing, eyen though specially, subjected itself to the local practice.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 929, 930; Dec. Dig. § 309.*]</p> <p>2. Judgment (§ 504*)—Collateral Attack—Grounds—Error in Proceedings.</p> <p>Whether a state court should have continued a cause after denying defendant’s motion for dismissal is not a jurisdictional question which can be raised in a suit to enjoin a collection of the judgment.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 944-947; Dec. Dig. § 504.*]</p>

This cause comes here upon appeal from a decree of the District Court, Eastern District of New York, holding a patent to he valid and 'infringed. The patent is No. 908,910, granted January 5, 1909, to Charles A. Ufford for a dress form, which is a device for aiding women in making and fitting gowns, cloaks, waists, etc. It is a mannikin, usually made of papier maché covered with cloth, and representing a woman’s body.

<p>1. Slaves (§ 24*)—Peonase—Indictment.</p> <p>An indictment against defendant for peonage in compelling a convict, for whom defendant had become surety for the payment of a fine and costs, to work, alleged that defendant threatened such convict that if he refused to work out the debt he would have him arrested and put in jail, and that after such threat the convict did not voluntarily work, and did against his free will continue to work for defendant under the contract until a later date. The indictment further alleged that the convict was coerced and intimidated, but did not allege any wrongful act on defendant’s part by which he was coerced or intimidated. Held, that the indictment was insufficient to charge that the convict was held in a condition of peonage.</p> <p>[Ed. Note.—For other cases, see Slaves, Cent. Dig. § 113; Dec. Dig. § 24.*]</p> <p>2. Constitutional Law (§ 83*)—Involuntary Servitude—Labor Contract —Peonase.</p> <p>Code Ala. 1907, § 7632, provides that when a fine is assessed the court may allow defendant to confess judgment with good and sufficient sureties, and section 6846 declares that when this is done a convict may contract to render services for the surety in payment of the fine and costs, and if he does so, and refuses without sufficient excuse to perform the services, he must on conviction be fined not less than the amount of the damages which the party contracting with him has suffered by reason of his failure, or refusal, etc. Held, that section 6846, having been sustained by the highest state courts, was not in violation of Const. U. S. Amend. 13, prohibiting slavery or involuntary servitude except as a punishment for crime, the execution of the surety labor contract not operating to relieve the convict from his status as a prisoner, liable to perform the judgment for fine and costs, but merely to transfer his custody and services from the state to the surety; and hence his service for the latter does not constitute peonage.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 150- • 151%; Dec. Dig. § 83.*]</p>

<p>Slaves (§ 24*)—Peonage—Indictment.</p> <p>An indictment for peonage in holding a convict to labor to pay a fine and costs for which defendant had become surety, failing to allege that the convipt ever entered upon the performance of .the service for the surety, or did any work or labor as agreed, or was ever in the surety’s custody or control, was fatally defective.</p> <p>[Ed. Note.—For other cases, see Slaves, Cent. Dig. § 113; Dec. Dig. § 24.*]</p>

In Bankruptcy. In the matter of A. G. Swanson, bankrupt.' On petition to review .an order of the referee setting aside $245 as exempt in lieu of certain animals.

<p>Aliens (§ 61*)—Peesons Capable or Natubalization—“White Peesons”— Syeians.</p> <p>The meaning of the words “white persons,” as used in Rev. St. § 2169, as amended in 1875 (U. S. Comp. St. 1901, p. 1333), authorizing the naturalization of aliens “being free white persons,” cannot be determined on any ground of complexion or race, but in view of the conditions existing in 1790, when they were first used in the naturalization statute, must be limited to persons of European nativity or descent. As so construed, a Syrian is not entitled to naturalization.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 119-122; Dec. Dig. § 61.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7446, 7447.]</p>

At Law. Action by Sarah S. Wellman, in her own right and as widow of Ora E. Wellman, against John C. Bethea, administrator of John H. Bethea, deceased. On motion by defendant to' vacate judgment.

In Equity. Suit by the Photo Drama Motion Picture Company, Incorporated, against the Social Uplift Film Corporation. Reginald Wright Kauffman, author of the “House of Bondage,” prior to publication assigned his right of copyright to the Moffatt, Yard & Co. The Moffatt, Yard & Co. duly copyrighted the book and thereafter reassigned to the author the dramatic and motion picture rights.

<p>In Equity. Suit between E. W. Bernitt and another against the Smith-Powers Logging Company and others.</p>

<p>1. Bankruptcy (§ 223*)—Pees op Referee—Commissions.</p> <p>Where the property of a bankrupt was purchased at trustee’s sale by a lienholder whose claim exceeded the purchase price, and who was required by order of court to give a bond for the payment only of such sum as should be necessary to pay prior liens and the costs of administration, the referee is not entitled to commission on the remainder of the price bid, which was- not disbursed by the trustee even in form.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 888-894; Dec. Dig. § 223.*]</p> <p>2. Bankruptcy (§ 223*)—Compensation op Referee—Special allowances.</p> <p>Under General Orders in Bankruptcy XXXV, cl. 2 (89 Fed. xiii, 32 C. O. C. A. xxxiv), a referee is entitled only to necessary expenses incurred by him in publishing or mailing notices, in traveling, in perpetuating testimony, or in the performance of other duties under the act and allowed by special order of the court. He is not entitled to the allowance ot a per diem for his services when away from home, to traveling expenses of a clerk, nor to clerk or stenographer’s hire, unless the necessity therefor is shown.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 888-894; Dec. Dig. § 223.*] ' .</p>

<p>Action by Frederick Courtney against the New York, New Haven & Hartford Railroad Company.</p>

Suits by the United States' against the Erie Railroad Company. Suit No. 1 was instituted by the United States against the railroad company to restrain it from issuing passes to agents of transatlantic steamship lines, and suit No. 2 to restrain it from issuing passes to the agent of the Great Eastern Railway of England. On final hearing.

<p>1. Bankruptcy (§ 20*) — Jurisdiction of State Courts — Foreclosure of Mortgage.</p> <p>. After the filing of an involuntary petition in bankruptcy, the state court had no jurisdiction to grant executory process to foreclose a mortgage on the real estate of the bankrupt, and its order of sale was void, since the jurisdiction of the bankruptcy court vested on the filing of the petition, and the title and possession were then in the bankrupt, who could hold it for the purpose of maintaining jurisdiction as well as a receiver or trustee.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. § 23; Dec. Dig. § 20.*]</p> <p>2. Bankruptcy (§ 2T3*)—Liens—Enforcement—Foreclosure of Mortgage.</p> <p>Where there was a growing crop on the mortgaged real property of a bankrupt which the trustee had been directed by the creditors to cultivate and harvest, the mortgagee would not be permitted to foreclose, though he might have any relief to which he jvould be entitled in equity, and, when the property was eventually sold, he could not suffer any diminution of right or be subjected to any greater expense than by a foreclosure in the state court.</p> <p>[Ed. Note.—For other cases, see Bankruptcy,' Cent. Dig. §§ 334r-342; Dec. Dig. § 213.*]</p> <p>3. Bankruptcy (§ 217*) — Jurisdiction of State Courts — Foreclosure of Mortgage.</p> <p>A trustee in bankruptcy by applying to a state court to set aside an order granting executory process for the foreclosure of a mortgage could not impair or affect the jurisdiction of the bankruptcy court to enjoin the foreclosure.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 323, 330, 340; Dec. Dig. § 217.*]</p>

<p>Courts (§ 312*) — Jurisdiction or Federal Courts — Suit by Assignee — Chose in Action.</p> <p>Under the provision of Judicial Code (Act March 3, 1911, c. 231, § 24, 36 Stat. 1091 [U. S. Comp. St. Supp. 1911, p. 135]), that no District Court, shall have cognizance of any suit to recover on a chose in action in favor of an assignee, unless it could have been prosecuted in such court if no assignment had been made, a District Court is without jurisdiction of a suit by an assignee of the rights of the grantor in an instrument in form a deed, to have the same declared a mortgage in accordance with the contract of the parties, and to redeem therefrom, where for want of diversity of citizenship the assignor could not have maintained the suit in such court.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 865-875; Dec. Dig. § 312.*]</p>

<p>1. Taxation (§ 679*) — Tax Sale — Purchase and Resale by the State — Statute.</p> <p>Under the Michigan Tax Law of April 6, 1869 (Pub. Acts Mich. 1869, No. 169) § 124, which provided that the Auditor General should furnish annually a list of the state tax lands remaining unsold for five or more years, which should he offered at the next tax sale, a sale of lands listed by the Auditor General within less than five years from the time they were bid in by the state was void.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1361, 1362; Dec. Dig. § 679.*]</p> <p>2. Taxation (§ 615*) — Tax Sale — Pubchase and Resale by the State — Statute.</p> <p>That section was prospective and not retroactive in its operation, and did not apply to lands bid in by the state before its enactment.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1264;, Dec. Dig. § 615.*]</p> <p>3. Taxation (§ 618*;—Sale fob Taxes—Validity of Tax.</p> <p>A sale of lands for delinquent taxes, part of which tax was levied to pay a salary to the sheriff, who was legally entitled only to fees, was void.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1274; Dec. Dig. § 618.*]</p> <p>4. Taxation (§ 679*)—Sale foe Taxes—Resale by the State—Statute.</p> <p>Pub. Acts Mich. 1893, No. 206, as amended by Pub. Acts 1897, No. 229, §§ 140-143, denying a purchaser from the state of lands bid in by it at a tax sale the right to the possession of the lands until six months after notice of the sale was served upon the owner of the lands under the last recorded deed in person, or by registered mail if he were a nonresident, before its amendment by Pub. Acts 1899, No. 204, wlpch provided for service-of notice upon the personal representatives or heirs of a deceased owner, failed to make provision for a case where the owner had died, and a notice mailed to such owner and received by his executor was ineffective to-bar the rights of the heirs.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1361, 1362; Dec-Dig. § 679.*]</p> <p>5. Taxation (§ 696*)—Sale foe Taxes—Resale by State—Constbuction of Statute.</p> <p>Since that statute gave the owners of the land the right to redeem, it' will be construed favorably to the former owners, and the court will not read into it a provision which would deprive the heirs of their property without a hearing or an opportunity to redeem.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1393; Dec. Dig- § 696.*]</p> <p>6. Taxation (§ 679*)—Sale foe Taxes—Resale by State—Constbuction of Statute.</p> <p>Even though the tax sale to the state gave the state the absolute ownership of the lands as against the heirs, the effect of the statute was to-give to the heirs a title in the property which came into existence at the-time of the sale by the state, to which the title of the state’s grantee was subject until after the required notice had been given, and until that time-the grantee did not have even a colorable right of entry upon the premises.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1361, 1302:. Dec. Dig. § 679.*]</p>

, Judge. Suit in admiralty by M. Snider against the steamship Iowa; S. E. Adams, master and claimant. Decree for respondent, and libelant appeals.

the District Court of the United States for the District of Massachusetts; Clarence Hale, Judge. Action by John Hogan against the American Agricultural Chemical Company. Judgment for the plaintiff, and defendant brings error.

Whitaker Thompson, Judge. Petition by the P. E. Sharpless Company for mandamus to the District Court of the United States for the Eastern District of Pennsylvania, commanding it to so reform an order appointing a master to assess damages in a suit by William A. Lawrence and another, doing business as W. A. Lawrence & Son, against the P. E. Sharpless Company for infringement of a trade-mark and unlawful competition as to conform the order to the mandate of the Circuit Court…

<p>In Error to the District Court of the United States for the Middle District of Pennsylvania; Chas. B. Witmer, Judge.</p> <p>Action by J. A. Hollinger, in the name of the United States, but to his use, against the National Surety Company and the Illinois Surety Company on the bond of one Stannard, executed to the United States to secure performance of a contract for the construction of a post office, in which the Vermont Marble Company infervened. From a judgment in favor of defendants, said Hollinger and intervener bring error.</p>

Suit in admiralty by the Propellor Towboat Company of Savannah, the Pilots Navigation Company,' and others, against the steamship Craster Hall. Decree for libelants (203 Fed. 188), and claimant appeals.

Suit in equity by Mary Frank, individually and as executrix of the will of Earnest Frank, deceased, against John Schnuettgen. Decree for complainant, and defendant appeals.

Action by Gerry U. Brooks, administrator, against the Pullman Company. Held: “If, at the close of the trial of an action for damages for negligence,' the evidence conclusively discloses the fact that the plaintiff was guilty of negligence which contributed.to his injury, it is the duty of the trial court to instruct the jury to return a verdict for the defendant.” In Christensen v. Metropolitan St. Ry.

Petition to Revise Order of the District Court of the United States for the Southern District of1 New York.

In Efror to the District Court of the United States for the District of New Hampshire; Edgar Aldrich, Judge. Action by James A. Farish against the Pacific Mills. Judgment for the plaintiff, and defendant brings error.

Action by Robert D. Kinney against the Plymouth Rock Squab Company and others. From the judgment, plaintiff brings error. Affidavit of prejudice, filed by the plaintiff in error,

I. Grubb, Judge. Suit in equity by the Birmingham Waterworks Company against the City of Birmingham and the Board of Commissioners of the City of Birmingham. From an order granting a preliminary injunction, defendants appeal.

McPherson, Judge. In the matter of the Keith-Gara Company, bankrupt. From an order allowing priority to the claim of Job T. Pugh for rent, Benjamin H. Dudlow, trustee, appeals.

<p>Patents (§ 328*)—Validity and Infringement—Furnace for Heating Ingots.</p> <p>The Morgan patent, No. 632,020, for a furnace for heating steel ingots or billets preparatory to rolling covers a device which was novel, useful, and inventive in character, being the first to provide for the discharge from the furnace automatically of a continuous and uniform rapid succession of uniformly heated billets, which are also automatically charged into the furnace; the result being a saving of 25 cents or more per ton in the labor cost of heating the billets besides obviating the necessity for labor under fierce heat conditions; also held infringed as to claims 3, 4, 5, 6, and 7.</p>

Appeals from the District Court of th^ United States for the Southern District of Ohio; John E. Sater, Judge. Suit in equity by the National Cash Register Company against Jerome T. Gratigny. From the decree, both parties appeal.

Brown, Judge. Suit by the Coldwell-Gildard Company and others against the Stafford Company, for infringement of reissue patent No. 11,923 (original No. 637,234), granted to Coldwell-Gildard for a warp stop motion for looms. From a decree for complainants (205 Fed. 929), defendant appeals.

Anderson, Judge. In Equity. Suit by the White Eily Manufacturing Company against the Horton Manufacturing Company. Decree for complainant, and defendant appeals. Appellee brought suit for infringement of its patent, No. 863,120, granted to A. F. Victor on August 13, 1907, on application filed May 29, 1907, for improvements In gearing for washing machines. Validity and infringement were decreed by the District Court.

<p>In' Equity. Suit by John W. Blackledge against the J. M. Shock Absorber Company and Albert J. Dueth and Alexander J. Dueth, doing business as the Alfredal Company. On final hearing.</p>

<p>Patents (§ 328*)—Invention—Spuing Cushion.</p> <p>The D’Arcy patent, No. 726,817, for a spring cushion structure, claims 1 and 2, held void for anticipation and lack of patentable invention.</p>

<p>Patents (§ 328*)—Validity and Infringement—Furnace Grate.</p> <p>The Meissner patent, No. 529,286, for a furnace grate, is of very narrow-scope in view of the prior art, and limited to the specific arrangement or combination whereby the two swinging grates used to remove clinkers at the foot of the sloping fire bed are actuated simultaneously. As so construed held not infringed.</p>

<p>1. Constitutional Law (§ 45*)—Determination of Constitutional Question—Jurisdiction of District Courts.</p> <p>Courts of the United States inferior to the Supreme Court are created by acts of Congress, and their jurisdiction is dependent upon the same source; hence' such a court cannot hold unconstitutional a provision of a congressional act limiting the right to remove causes from a state court.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 42; Dec. Dig. § 45.*]</p> <p>2. Jury (§ 11*)—Application of Provisions of Federal Constitution To State Courts.</p> <p>The seventh constitutional amendment, providing that “in suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved,” does not apply to the states, but to the federal and territorial courts only.</p> <p>[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 19-24; Dec. Dig. § 11.*]</p> <p>3. Removal of Causes (§ 3*)—Limitation of Right—Suits Brought under Employers’ Liability Act—“Court of Competent Jurisdiction.”</p> <p>A state is not inhibited by the federal Constitution from providing for a jury in its courts of less than 12 men, nor for a verdict whjch is not unanimous, and, notwithstanding such a provision, a state court, if otherwise so, is a “court of competent jurisdiction” within the meaning' of the provision of Judicial Code, § 28 (Act March 3, 1911, c. 231, 36 Stat. 1094 [U. S. Comp. St. Supp. 1911, p. 140]), that, no case arising under the federal Employers’ Liability Act and brought in any state court of competent jurisdiction shall be removable.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. § 3.*</p> <p>For other definitions, see Words and Phrases, vol. 2, p. 1685.]</p> <p>4. Courts (§ 157% New, vol. 19 Key-No. Series)—Jurisdiction—Suit in State Court Based on Federal Statute.</p> <p>A superior court of Washington is a court of competent jurisdiction to entertain an action brought under the federal Employers’ Liability Act April 22, 1908, e. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322).</p>

<p>In Equity. Suit by the Investment Registry, Rimited, against the Chicago & Milwaukee Electric Railroad Company and others, in which the Western Trust & Savings Bank and Willoughby G. Walling, as trustees under a deed of trust made by the defendant company, filed a cross-bill against the defendant company and others. Motions by cross-complainants and by Smith and Ford, purchasers, and a reorganization committee represented by them, to withdraw applications for confirmation of sale and for a new sale, and motion by John Griffiths, a bondholder, for leave to intervene.</p> <p>Motions by the cross-complainants, Western Trust & Savings Bank and Willoughby G. Walling, the trustees under the mortgage of the Chicago & Milwaukee Electric Railroad Company (a Wisconsin corporation) foreclosed herein, and by Smith and Ford, the purchasers, and the reorganization committee they represent, to withdraw their applications for the confirmation of the sale had on September 25, 1912, pursuant to the decree of foreclosure ana sale entered by this court on August 7, 1912; motion by John Griffiths, a bondholder, for leave to file his intervening petition herein.</p> <p>“There are two Chicago & Milwaukee Electric Railroad companies organized under the laws of the states of Illinois and Wisconsin, respectively. Each company constructed an electric interurban railroad in the state of its organization. These two railroads were in reality one continuous line of track, extending from Evanston, Ill., to Milwaukee, Wis., with a branch in Illinois. In 1902, the Illinois company executed a mortgage covering all of its property to secure the payment of $5,000,000 of bonds, of which $4,000,000 were issued and are now outstanding. In 1905, the Wisconsin company executed a mortgage covering all of its property, to secure the payment of an issue of $10,000,000 of bonds, all of which were issued and remain unpaid.</p> <p>“In January, 1908, proceedings by creditor’s bill were started in the Circuit Court here and at Milwaukee, in the Eastern District of Wisconsin. In these proceedings receivers were appointed here and there. Subsequently bills were filed in the two jurisdictions to foreclose the mortgages mentioned, and these proceedings were consolidated with the original proceedings; the receivership having been continued to the present time. During the year 1912, decrees of sale were rendered here and at Milwaukee covering the property, respectively, of the two companies. The sales took place at Waukegan, Ill., and Racine, Wis., on September 25th, last. For the Illinois property $1,650,000 was offered, and for the Wisconsin property $1,600,000. These bids were made by agents representing a reorganization committee, with which committee there had been deposited approximately 95 per cent of each issue of bonds under foreclosure. There being no other bids, the master has recommended their acceptance. The objection comes from a holder of 12 Illinois bonds, which the owner refused to deposit under the proposed plan of reorganization, and, of course, attacks here only the Illinois sale.”</p> <p>This statement, taken from the opinion of the trial judge in Investment Registry, Limited,' v. Chicago & Milwaukee Electric Railroad Company [D. C. North Dist, Ill.] 206 Fed. 488, 490,' gives briefly the situation out of which the matters now before the court grow. In the opinion referred to, the conclusion was reached that the sale of the Illinois property be set aside; and a resale was ordered. From such order an appeal was taken. Pending such hearing in the District Court for Illinois, and the appeal, no further steps were taken in the Wisconsin proceedings, except the filing of a petition for the confirmation of the sale herein had and the presentation of the petition of Griffiths next referred to.</p> <p>On February 15, 1913, John Griffiths presented to the court his petition, averring among other things, his ownership of 200 of the bonds, secured by the mortgage which was the subject of foreclosure, and asked leave to file it as an intervening petition, seeking through the same to be made a party to the consolidated cause, to object to the confirmation of the sale, and for affirmative relief as hereinafter stated.</p> <p>On June 6, 1913, the Court of Appeals affirmed the ruling of the District Court for the Northern District of Illinois, 212 Fed. 594, 129 tí. C. A. 130, and thereafter the trustees herein assuming that in obedience to such judgment of affirmance this court would likewise order a resale, made a motion, in which the purchasers at the sale under the decree of this court joined,' to withdraw their previous applications for confirmation and to direct a resale of the property. At the same time the application of Griffiths to intervene was heard.</p>

<p>At Law. Action by Richard Silvas, an infant, by Ramon Silvas, his guardian ad litem, against the Arizona Copper Company, Limited. On motions to compel plaintiff to give security for costs and to make his complaint more definite and certain, and on demurrer raising the statute of limitations.</p>

<p>In Equity. Bill by Tanqueray, Gordon & Co., Limited, against the' Gordon Distilling & Distributing Company.</p>

In Bankruptcy. Petition in involuntary bankruptcy proceedings against Andrew Schow by the temporary receiver to compel Andrew Schlechtweg, Deputy Sheriff, to surrender to the receiver certain property of the alleged bankrupt in his possession.

<p>1. Druggists (§ 11*)—“Misbranding”—Insecticide.</p> <p>Insecticide labeled “Sulpho-Napthol,” while containing less than four-tenths of 1 per cent, of sulphur, the presence of which was due to chemical or accidental impurities in the materials employed, without affecting either for good or ill the usefulness of the article, was misbranded within the Insecticide Act (Act April 26, 1910, c. 191, 36 Stat. 331 [U. S. Comp. St. Supp. 1911, p. 1368)), and under section 10 of the act must be condemned.</p> <p>[Ed. Note.—For other eases, see Druggists, Cent. Dig. § 10; Dec. Dig. § 11.*]</p> <p>2. Druggists (§ 11*)—“Misbranding”—Insecticide.</p> <p>Insecticide labeled “Inert Substance Water 7%, Insecticide 93%,” while containing as much as 10.5 per cent, of water, was misbranded, within the Insecticide Act (Act April 26, 1910, c. 1911, 36 Stat. 331 [U. S. Comp. St. Supp. 1911, p. 1368]), and under section 10 of the act must be condemned.</p> <p>[Ed. Note.—For other cases, see Druggists, Cent. Dig. § 10; Dec. Dig. § 11.*]</p>

<p>1. Abatement and Revival (§ 5*) — Penalties (§ 38*) — Another Action Pending—Actions fob Penalties.</p> <p>Under Immigration Act Feb. 20, 1907, c. 1134, § 5, 34 Stat. 900 (U. S. Comp. St. Supp. 1911, p. 503), allowing a penalty for the importation of a contract laborer to be recovered by the United States or by any person who should first bring an action therefor, a suit by an individual, while it was pending, would prevent an action by any other person, including the United States, for the same violation, and a judgment in such suit on the merits would finally bar every, suit by any other party.</p> <p>[Ed. Note.—For other eases, see-Abatement and Revival, Cent. Dig. §§ 27-30, 99-104; Dec. Dig. § 5 ;* Penalties, Cent. Dig. § 40; Dec. Dig. § 38.*]</p> <p>2. Abatement and Revival (§ 15*)—Action to Eneorce Penalty—Pendency oe Another Action.</p> <p>Where a demurrer to the declaration by an individual to recover such penalty was sustained without leave to amend, but the individual never instituted another suit to recover the penalty, as he might have done, the statute do,es not prevent another suit by the United States or by any other person, the first suit not being an action for the penalty in the sense contemplated by the statute, since the declaration did not clearly allege any violation thereof.</p> <p>[Ed. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 111-117; Dec. Dig. § 15.*]</p> <p>3. Penalties (§ 38*)—Conclusiveness—Judgment on Demurrer.</p> <p>Nor was such judgment res judicata as to the defendant’s liability to the United States for the amount of such penalty.</p> <p>[Ed. Note.—For other cases, see penalties, Cent. Dig. § 40; Dec. Dig. § 38.*]</p> <p>' 4. Limitation of Actions (§ 35*)—Actions fob Penalties under Immigration Law.</p> <p>Neither Rev. St. § 1044 (U. S. Comp. St. 1901, p. 725), limiting prosecutions for the commission of offenses not capital, nor Rev. Laws Mass. c. 202, § 5, limiting actions for the enforcement of penalties, applies to suits for the penalty for importing an alien contract laborer under Immigration Act Feb. 20, 1907, e. 1134, § 5, 34 Stat. 900 (U. S. Comp. St. Supp. 1911, p. 503).</p> <p>[Ed. Note.—For other eases, see Limitation of Actions, Cent. Dig. §§ 109, 158-167; Dec. Dig. § 35.*] -</p>

<p>At Law. Action by Arthur J. Raymond against James R. Willis-ton. On motion to strike.</p>

<p>In Equity. Suit by James R. Williston against Arthur J. Raymond. On motion for a temporary stay.</p>

<p>Collision (§ 96*)—Ferryboat Coming from Slip—Failure to Wait Passing of Lighter.</p> <p>A ferryboat held solely in fault for a collision off the Battery as she came out of her slip with a passing lighter which had stopped in front of the slip to avoid other vessels and was in plain sight when the ferryboat started out.</p> <p>[Ed. Note.—For other cases, see Collision, Cent Dig. §§ 203-205; Dec. Dig. § 96.*],</p>

<p>1. Copyrights (§ 06*)—Extent op Right—Component Parts op Work.</p> <p>Where a copyright for a musical composition, consisting of words and music, was obtained, but the words and the music were hot copyrighted separately, as might have been done, the copyright did not protect the words alone, and was not infringed, under the law in force prior to Copyright Act March 4, 1909, c. 320, 35 Stat 1075 (U. S. Comp. St. Supp. 1911, p. 1472), by the inclusion, with perforated rolls for the mechanical reproduction of the music, of the printed words.</p> <p>[Ed. Note.—For other cases, see Copyrights, Cent. Dig. § 63; Dec. Dig. § 66.*]</p> <p>2. Copyrights (§ 66*)—Infringement—Mechanical Reproduction.</p> <p>.Copyrighted musical notations, in writing or printing, are not infringed by the mechanical reproduction of the music.</p> <p>[Ed. Note.—For other cases, see Copyrights, Cent. Dig. § 63; Dec. Dig. § 66.*]</p> <p>3. Copyrights (§ 66*)—Extent op Rights—Component Parts op the Work.</p> <p>Under Copyright Act March 4, 1909, c. 320, § 3, 35 Stat. 1076 (U. S. Comp. St. Supp. 1911, p. 1473), which provided that the copyright for work shall protect all copyrightable component parts of the work, a copyright of a musical composition includes a copyright of the words thereof, and is infringed by a reproduction of them.</p> <p>[Ed. Note.—For other cases see Copyrights, Cent. Dig. § 63; Dec. Dig. § 66.*]</p>

<p>1. Pleading (§ 320*)—Trade-Marks and Trade-Names—Suit eor Infringement—Bill of Particulars.</p> <p>A motion by the defendant, in a suit for infringement of trade-mark and unfair competition, for a further bill of particulars denied, where the information sought related to defendant’s business and was peculiarly within its own knowledge.</p> <p>[Ed. Note.—Eor other cases, see Pleading, Cent. Dig. § 972; Dec. Dig. § 320.*].</p> <p>'2. Trade-Marks and Trade-Names (§ 92*)—Suit for Infringement—Bill of Particulars.</p> <p>The complainant in a suit for unfair competition will not be compelled to disclose in advance of the hearing the names of persons alleged to have been deceived into buying defendant’s goods.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 102, 103; Dec. Dig. § 92.*]</p>

<p>New Trial (§ 162*)—Excessive Verdict for Unliquidated Damages—Conditions to Refusing New Trial—Remission of Excess.</p> <p>Where the verdict in an action for damages for a permanent injury is for a sum clearly larger than is warranted by the evidence, it is within the power of the trial court, in the exercise of its discretion to grant a new trial, to require the plaintiff to consent to a reduction as a condition to allowing the verdict to stand.</p> <p>[Ed. Note.—Eor other cases, see New Trial, Cent. Pig. §§ 324-329; Dec. Dig. § 162.*]</p>

<p>Master and Servant (§ 13*)—Statutory Regulations—Hours oe Service.</p> <p>Under Act March 4, 1907, c. 2939, 34 Stat. 1415 (U. S. Comp. St Supp. 1911, p. 1321), making it unlawful for any common carrier by railroad to require or permit any employé engaged in or connected with the movement of any train to remain on duty for longer than 16 consecutive hours, where the crew of a train were on duty for 17% hours, except for a period of 1% hours, during which the train, held to permit superior trains to meet and pass, was placed in charge of an engine foreman or switchman,'and the crew was laid off or released from duty, this lay-off .did not break the continuity of the service.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. § 13.*]</p>

<p>Aliens (§ 68*)—Natubalization—Construction of Statute.</p> <p>The provision of Act June 29, 1906, c. 3592, § 4 (2), 34 Stat. 596, as amended by Act June 25, 1910, c. 401, § 3, 36 Stat. 830 (U. S. Comp. St. Supp. 1911, p. 530), authorizing the naturalization without a previous declaration of intention of an alien who has resided constantly in the United States during a period of 5 years next preceding May 1, 1910, and who, because of misinformation in regard to his citizenship or the requirements of the law, has in good faith exercised the duties of a citizen, etc., if iu the judgment of the court he “has been for a period of more than 5 years entitled upon proper proceedings to be naturalized,” does not apply to one who, although he has resided in the United States for the required length of time, was not 21 years old on May 1, 1905.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. § 68.*]</p>

<p>Bankruptcy (§ 138*)—Property Passing to Trustee—Salary Earned After Adjudication.</p> <p>Salary earned by a bankrupt after adjudication and pending discharge does not belong to Ms estate, unless affected by a garnishee levy, and prior assignments of such salary to creditors are ineffective.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent.- Dig. §§ 193-204, 206-209; Dec. Dig. § 138.*]</p>

In Bankruptcy. In the matter of John J. Collins, bankrupt. On motion by the bankrupt for an order permitting payment to him of his salary.

M. Smith, Judge. Two actions, by Edward Robert and another and by Pauline Sanders and others, respectively, against the Pineland Club and others. Held: and the defendants under him held by a title derived from John H. Robert. [9] The defendant claims, however, that this claim from a common source may still exist and yet not be incompatible with a perfect title in fee in the defendants.

At Daw. Action by A. J. Steinman against the Clinchfield Coal Corporation.- Judgment for plaintiff, and defendant brings error.

Killits, Judge. Charles A. Sandals and another were convicted of using the United States mails in execution of a scheme to defraud, and they bring error. Plaintiffs in error were convicted on charges of using the United States mails in execution of a scheme to defraud.

<p>In Error to the District Court of the United States for the District of Montana; Geo. M. Bourquin, Judge.</p> <p>Action by the United States against the Northern Pacific Railway Company. From the judgment, defendant brings error.</p>

<p>1. Courts (§ 295*)—Federal Courts—Jurisdiction—Actions against Receivers.</p> <p>Where a receiver of a corporation was appointed by a federal court, an action against the receiver for injuries to an employé was maintainable in such court, though there was no federal question involved nor diversity of citizenship.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 837; Dec. Dig. § 295.*</p> <p>Actions by and against receivers of federal courts,, see note to J. I. Case Plowworks v. Finks, 26 C. C. A. 49.]</p> <p>2. Receivers (§ 185*)—Actions against Receivers—Instructions.</p> <p>Where a lessee of certain mining properties was appointed receiver thereof in mortgage foreclosure proceedings, after which he operated the property as receiver, accounted for the rents, and made expenditures which he was not authorized to make under the lease, and it also appeared that he accepted the appointment as receiver in lieu of his rights as lessee, and the foreclosure decree contained no recognition of the lease, but provided that the receiver should execute a conveyance of all the property of the corporation and let the purchaser into possession, the court properly refused to charge that, after his appointment as receiver, he operated the mine as lessee.</p> <p>[Ed. Note.—For other cases, see Receivers, Cent. Dig. §§ 371-373; Dec. Dig. § 185.*]</p> <p>3. Master and Servant (§ 286*)—Injuries to Servant—Negligence—Dangerous Work—Question eor Jury.</p> <p>In an action for injuries to a boy 18 years of age, without training or experience, by receiving a shock from a high-voltage wire, evidence that he was placed under an electrician who was employed on the line, and by him permitted to ascend the poles and engage in tying high-voltage wires there, was sufficient to justify submission to the jury of defendant’s negligence in permitting plaintiff to engage in such hazardous employment, the lineman being regarded as a vice principal under Employers’ Liability Act, Or. (Sess. Laws 1911, p. 16) § 2, providing that the manager, superintendent, foreman, or other person in charge or control of the construction or works or operation or any part thereof shall be held to be the agent of the employer in all suits for damages for death or injury to an employé, etc.</p> <p>[Ed. Note.—For other eases, see Master and- Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]</p>

Petition for Revision of Proceedings of. the District Court of the United States for the Northern Division of the District of Idaho; Frank S. Dietrich, Judge. In the matter of bankruptcy proceedings of the Lane Lumber Company, a corporation. On petition of Whitla & Nelson, attorneys for the bankrupt, to revise in matter of law a certain order of the District Court (206 Fed. 780) allowing in part petitioners’ claim for services rendered to the bankrupt.

<p>1. Master and Servant (§ 190*)—Injuries to Servant—Fellow Servants.</p> <p>Plaintiff, who had been employed by defendant in the operation of a sawmill to perform various duties, was directed to assist in making repairs in the brickwork about the base of a refuse burner, and while so engaged was injured by a piece of a timber thrown from the conveyor attached to the burner through the negligence of F., who with two assistants had just completed the installation of a new sprocket wheel at the top of the conveyor. F. was in immediate charge of installing the wheel, and another was in charge of the brickwork, but both were subordinate to H., who was a foreman inferior to the superintendent, who in turn was subject to the orders of the general manager. Meld, that plaintiff and F. were fellow servants at common law.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 375-378, 486-488; Dec. Dig. § 196.*</p> <p>Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]</p> <p>2. Master and Servant (§ 107*)—Injuries to Servant—Dangerous Place.</p> <p>Where the place where plaintiff was employed was not dangerous or defective immediately before the accident in which he was injured by being struck by timber negligently thrown from a sawmill refuse conveyor to the ground by plaintiff’s fellow servant, and the throwing of the timber would not have been dangerous had care been exercised to warn persons who might be below, or to see that no one was below, defendant was not negligent in failing to provide plaintiff a safe place to work.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.*]</p> <p>3. Master and Servant (§ 141*)—Injuries to Servant—Manner oe Work —Duty to Prescribe.</p> <p>The rule that a master is required to prescribe the manner in which work committed to servants shall be performed extends only to services of a complicated and dangerous character, requiring skill and experience, and had no application to the taking down a scaffold used to install a new sprocket wheel in a refuse conveyor in a sawmill, involving the lowering of timbers from the scaffold to the ground.</p> <p>[Ed. Note.—For other eases, see Master and Servant, Cent. Dig. § 283; Dec. Dig. § 141.*]</p>

<p>1. Insurance (§ 668*)—Action on Accident Policy—Sufficiency of Evidence.</p> <p>Evidence considered, and held to justify the submission to the jury of the question whether the death of an insured resulted solely from an accidental injury within the terms of an accident policy.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. § 668.*</p> <p>Accident insurance—risks and causes of loss, see notes to National Accident Society v. Dolph, 38 C. C. A. 3; New Amsterdam Casualty Co. v. Shields, 85 C. C. A. 126.]</p> <p>2. Insurance (§ 455*)—Accident Insurance—“Accidental” Injury.</p> <p>Where the death of an insured was caused solely by an injury resulting from his slipping and falling while cranking the motor of an automobile, the injury was “accidental” within the meaning of an accident policy.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1166-1169; Dec. Dig.. § 455.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 62-70; vol. 8, p. 7560.]</p> <p>3. Continuance (§ 29*)—Surprise at Trial—Discretion op Court.</p> <p>The denial of a continuance during a trial, asked because of a hypothetical question asked an expert witness based on an assumed state of facts different from those alleged in the declaration, held not an abuse of the court’s discretion.</p> <p>TEd. Note.—For other cases, see Continuance,- Cent. Dig. § 95; Dec. Dig. § 29.*]</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; James S. Young, Judge.</p> <p>Action at law by Amanda Morrow against the Maryland Casualty Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Waters and Water Courses (§ 242*)—Irrigation—Right of Way—Public Land—Reservation.</p> <p>Act March 3,' 1891, c. 561, § 18, 26 Stat. 1101 (U. S. Comp. St. 1901, p. 1570), granting rights of way through public lands and reservations of the United States to any canal or ditch company formed for irrigation to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals and 50 feet on each side of the marginal limits thereof, ete.j constituted a grant of rights of way for such purposes through Indian reservations.</p> <p>[Ed. Note.—For other eases, see Waters and Water Courses, Cent. Dig. §§ 147, 307; Dec. Dig. § 242.*]</p> <p>2. Waters and Water Courses (§ 216*)—Irrigation—Right oe Way—Statutes—Reread—Abro gation.</p> <p>Act March 3, 1891, c. 561, § 18, 26 Stat. 1101 (U. S. Comp. St. 1901, p. 1570), granting to any canal or ditch company, for the purpose of irrigation, rights of way through public lands and reservations for reservoir, canal, laterals, etc., was not superseded nor repealed by Act May 11, 1898, c. 292, 30 Stat. 404 (U. S. Comp. St; 1901, p. 1572), amending Act Jan. 21, 1895, c. 37, 28 Stat. 635 (U. S. Comp. St. 1901, p. 1572), entitled “An act to permit the use of the right of way through the public lands for tramroads, canals’, and reservoirs and for other purposes,” the benefits of which were limited to any citizen or association of citizens of' the United States engaged in mining, quarrying, or cutting and manufacturing timber, but contained no provision for rights of way or reservoirs for irrigation purposes, the ways provided for by such act being also confined to the public lands of the United States not within the limits of any park, forest, military or Indian reservation.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 305; Dee. Dig. § 216.*]</p> <p>3. Indians (§ 27*) — Indian Lands—Reservation — Use -for Irrigation — Dam ages—Recovery.</p> <p>Since the manner, time, and conditions on which the Indians’ right of occupancy of the lands of an Indian reservation may be-extinguished are matters for the determination of the government, the Department of Justice may not maintain an action to recover damages for the appropriation of Indian reservation land for a reservoir by an irrigation corporation.</p> <p>[Ed. Note.—For other cases, see Indians, Cent. Dig. §§ 19, 20; Dec. Dig. § 27.*]</p>

Dietrich, Judge. Action at law by C. H, Hodge against the Federal Mining & Smelting Company. Judgment for plaintiff, and defendant brings error. The defendant in error was the plaintiff in an action against the plaintiff in error to recover damages for injuries sustained while in the employment of the latter. The parties will be designated plaintiff and defendant, as they were in the court below.

<p>Appeal from the District Court of the United States for the District of Oregon; Charles E. Wolverton, Judge.</p> <p>Action by the Kendrick State Bank against the First National Bank of Portland. Judgment for defendant (206 Fed. 940), and plaintiff appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty for collision by the Delaware, Lackawanna & Western Railroad Company, as owner of the ferryboat Binghamton, against the steamship General Putnam, John E. Moore Company, claimant, with cross-suit by such claimant against the railroad company. Decrees against the Putnam, and her claimant appeals.</p> <p>The opinion of Hough, District Judge, filed May 13, 1913, is as follows :</p> <p>By all the testimony the Binghamton and Putnam were approaching each other “green to green.” The night was ,not so dark but that those on the Putnam knew the Binghamton to be a Lackawanna ferryboat bound for Barclay street, while those on the Binghamton .recognized the Putnam as a familiar vessel pursuing her usual business.</p> <p>Not only the business convenience of each vessel, but the law, positively required that they should pass each other starboard to starboard.</p> <p>Admittedly signals to- that effect were exchanged, and admittedly each vessel slightly starboarded her helm in furtherance of the maneuver agreed upon.</p> <p>Then the Binghamton intended to blow one whistle—to the tug Oowen, which was at the time on her port side, and in my judgment, therefore, hidden from the Putnam. A breakdown of the Binghamton’s whistle valve converted the intended one' short blast into a long shriek that terminated only when steam was cut off. The fact that this endeavor to blow one short blast was not successful makes no difference at all in this case, for the Putnam assumed that one blast was intended, and further assumed that it was intended for her, and consequently acted upon the assumption that after having agreed to pass starboard to starboard the Binghamton had changed her mind and was proposing to take a course both dangerous and unlawful.</p> <p>The first question in this case is whether the Putnam was justified in bélieving that the Binghamton’s one blast was intended for her.</p> <p>The Putnam’s excuse for this belief is that there was nothing else in the river to which the Binghamton could have been blowing. Whatever force this excuse has is much weakened by the testimony from the Oowen introduced by the Putnam. According to the report of the Cowen’s master and the testimony of her mate, there had been an exchange of whistles between the Putnam and the Cowen before the Binghamton appeared upon the scene.</p> <p>It of course follows that, if the Putnam and Cowen had been navigating with reference to each other before the Putnam was called upon to exchange signals with the Binghamton, the Putnam’s navigators should have appreciated the fact that the ferryboat had come between them and the Cowen, and no excuse at all exists for their asserted belief that there was nothing else in the river to which tfle Binghamton could be blowing.</p> <p>I am myself inclined to credit the testimony from the Cowen, but even without that evidence I am of opinion that what the Putnam’s navigators thought the Binghamton meant by one whistle was so obviously dangerous and unlawful that they were not justified in acting as they did.,</p> <p>As soon as the Putnam’s helm was ported the collision was inevitable, and for the natural results of that collision the Putnam is solely responsible.</p> <p>It is, however, quite obvious that much, if not most, of the Binghamton’s •damages resulted from collision with the Cowen’s ear float, and the second question in the case is whether for that damage she can recover against the Putnam.</p> <p>I am convinced that when the Binghamton blew one whistle (or intended so .to do) she was close aboard the Cowen. In order to avoid the Putnam she edged still closer. In respect of the Cowen, this was bad navigation, and, as against the Putnam, the ferryboat would have been completely justified in maintaining the course upon which she was when the Putnam swung under a port helm.</p> <p>But the primary fault was that of the Putnam. The blunder of that vessel in assuming that the ferryboat’s one whistle was intended for her is inexcusable, and the result of the ferryboat’s having changed her course was to ease the blow between the Putnam and herself. The most stringent rule to which the ferryboat may be held is that of the privileged vessel bound to maintain her course and speed; yet even such a vessel has been excused for changing her course where collision appeared inevitable if. the course was maintained and the danger was solely due to the fault of another vessel. The Queen Elizabeth, 122 Fed. 406, 59 C. C. A. 345. Here collision was inevitable. The ferryboat’s course was changed to the probable—indeed, almost certain—benefit of the Putnam, so far as that vessel’s own injuries were concerned; for I believe that if the collision had been more direct the Putnam might have been sunk. If in thus easing the blow and lessening damage on one side, injury arose on the other side, the whole damage was proximately caused by th$ General Putnam.</p> <p>It follqws, therefore, that the Putnam’s libel is dismissed, and that of the Binghamton sustained—in each ease, with costs.</p> <p>This cause comes here on appeal from decrees, holding the General Putnam solely in fault for a collision of the Binghamton, first with the Putnam, and afterwards with a car float in tow of the tug John K. Cowen. The collision occurred at night. The Putnam was landing immigrants from Ellis Island at several piers. 'She had left a pier of the Erie Railroad, and was bound for a pier of the Delaware, Lackawanna & Western Railroad, just south of its Hoboken ferry slips. The Binghamton left one of these slips bound for Barclay street, New York. They sighted each other in ample time, showing green ,to green. The Putnam gave a two-blast signal, which was answered' with a like signal by the Binghamton, and both vessels starboarded slightly. Immediately after this exchange of signals, the mate of the Binghamton called her master’s attention to the Cowen and float, which was coming straight down the river on the ferryboat’s port beam. The master thereupon pulled his whistle cord to give a single blast to the Cowen, the whistle jammed, and the signal became a prolonged shriek, which continued until after collision. The master of the Putnam, who had stopped his engines, assumed that it was one blast when it began to blow, and at once blew a single whistle, started up full speed and ported, but, seeing the Binghamton keeping on, without apparent change, stopped and backed. The Binghamton tried to get away by hauling towards the New York side, but without success, and the Putnam struck her a little forward of amidships. The Binghamton at once stopped to avoid raking the how of the Putnam the whole length of the Binghamton and turning the Putnam over. Each knew the other boat carried passengers. The Binghamton did not back, because of .the position of the Cowen, which was close on her port side, and would have struck her amidships with great force, if the latter had then backed. Shortly after the first collision, and while the Putnam was backing clear, the ear float collided with the Binghamton.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by John Cook against the steam tugs Hercules and Ira M. Hedges; the Cornell Steamship Company, claimant. Decree 'for respondents, and libelant appeals.</p> <p>The following is the statement of the case by Hand, District Judge, with his opinion thereon:</p> <p>This is a libel in rem for damages caused by an alleged negligent towing on the Hudson river on the 26th of February, 1912. The injured boat was a coal barge which had been delivered to the claimant at its wharf in New York off Fifty-First street some .time about -midday on that day. She was then put on the end of a tow in charge of claimant’s two tugs, Hercules and Hedges, in the first two tiers of which there were three boats; the starboard boat being a lighter somewhat larger than the barges which made up the rest of the tow. The libelant’s barge was the starboard barge on the last tiers. The tow left Fifty-First street about 2 p. m., took on three boats at Edge-water, and slowly worked its way up to above Spuyten Duyvil about 9 o’clock p. m. At that time it met a field of ice floating down the river which extended well over to the east shore, but left a space on the west shore to within about 200 feet. The tug starboarded from a course about 500 feet oft shore and the tow slowly followed on. The ice continuing down the river struck the libelant’s barge before it had wholly straightened out under the starboarding of the tug, thus causing the injuries complained of, from which the barge soon after had to be beached and eventually sank. The libelant during the day had gone to the officers of the claimant in New York and asked some one in charge whether there was any ice in the river. There is some dispute as to the answer he got. He says he was assured there was none, and the claimant says that the answer was that there was none to be seen from Pier 51. As matter of fact the river was closed over as far down as Dobb’s Ferry or Hastings, but at the time the tow started no ice could be seen as far off as Yonkers, which was the terminus of the proposed voyage. In fact none was encountered, except the floe in question, until the tow arrived early next morning opposite Yonkers, when there was some difficulty in breaking through the ice on the east shore. The winter had been an unusually severe One, and there had been from time to time much ice in the river.</p> <p>Opinion.</p> <p>The only question in this case is whether it was negligent to tow the barge at night during a season of the year when ice was to be expected. As to the danger from ice, I cannot see how that was the tug’s fault; the barge need not have joined the tow, and, if it did, it took its own chances. Cook knew as well as the claimant what was the likelihood of ice. He inquired and got answer that there was no ice as far as Yonkers, which was the truth as far as has been shown, and that was all the assurance, that he could get. Of course, the claimant could not guarantee that no floe would break loose before the flotilla arrived at Yonkers, and, if he so understood their statement, he is to blame for his mistake. Merely to tow in the Hudson river while there is ice there is not negligent (The Edwin Terry, The William E. Cleary, 162 Fed. 309, 89 C. C. A. 17 [C. C. A. 2d Cir.]), not even though the towing be done at night (The Edwin Terry, 162 Fed. 311, 89 C. C. A. 19). Indeed, those cases are, if anything, stronger for the libelant than the case at bar, because here the libelant delivered the barge for this particular voyage, while in those cases the Consent was implied from a standing agreement which covered this period. “People who navigate the Hudson river at 3 o’clock in the morning of a day in February take their chances of meeting ice.”</p> <p>But, the libelant says, this rule has been modified or overruled in Monk v. Cornell Steamboat Co., 198 Fed. 472, 117 C. C. A. 232. At least it was not expressly overruled, although the same judges sat as in the cases of The Edwin Terry, supra. Furthermore the tug was absolved as in the case of the Terry. The libelant’s reliance is upon Judge 'Ward’s language on page 475 of 198 Fed., on page 235 of 117 C. C. A.: “If a tug tows a boat in her charge through dangerous ice without any consultation with her master or owner, the tug and owners will be solely responsible for damage to the boat. The Rambler (D. C.) 66 Fed. 355. If in such case the tug tow the boat with the consent of her master or owner, the tug and owners will be only liable for half the damages the boat may sustain. The Phoenix (D. C.) 143 Fed. 350. In such ease the master or owner of the boat towed agrees to take the risk of towing in the ice; the tug and owners will not be liable for towage in ice, but only for negligence in so towing. The Packer (C. C.) 28 Fed. 156.”</p> <p>The libelant says that in this case like The Phoenix (D. C.) 143 Fed. 350, cited by Judge Ward, damages should be divided. The facts in Monk v. Cornell Steamboat Co., supra, were different from The Edwin Terry, supra, in this important respect: That in The Edwin Terry there was floating ice in the river, while in Monk v. Cornell Steamboat Co. the tug had to break her way through a quarter of a mile of solid ice. So in The Phoenix, supra, the tug had to tow out the barge through a channel 40 feet wide in a completely frozen harbor. The Rambler, supra, while not a case of towing through a channel in solid ice, was one of towing without the owner’s knowledge. In The James A. Wright, 3 Ben. 248, Fed. Cas. No. 7,190, the tug attempted to force a passage through solid ice. In The Packer, supra, the tug was breaking through ice when the scow was hurt.</p> <p>Now it may seem as though the distinction were somewhat trivial between navigating in a river where there is, or might be, floating ice, and moving through a channel in solid ice; yet this is a valid distinction, because otherwise all towing in the Hudson river for four or five months of the year must be condemned as negligent and the tugs held in half damages unless they get an express acceptance of the risk. Such a result seems to me absurd; there doubtless is inherent danger in such towing, but the cost of escaping it is too great, if it involves stopping all winter navigation. A prudent man will undertake some risks when he must stop all gainful use of his property, as the cost of avoiding them. The fraction of negligence has not only the dividend of the probability of danger but the divisor of the pressure of necessity. On the other hand, the difficulties and dangers in breaking through solid ice, or navigating in a narrow channel, are too great to make it in usual circumstances of great value to commerce; people will not do it except under especial stress, and it ought to be done only after some express understanding is reached. So I have no idea that the three judges meant to overrule The Edwin Terry, supra, when they decided Monk v. Cornell Steamboat Co.</p> <p>There remains the question of the time of starting, which was at 2 o’clock in the afternoon. At that season of the year the sun is up only about 11 hours, and daylight lasts no more than 12. This voyage from New York to Yonkers began at about 2 p. m., and the last boat was not landed till 8 the next morning, about 16 hours in all. Therefore some of the journey had to be undertaken .in the dark, if it wap to be undertaken at all. Must the tows be made up at daybreak, so as to secure the minimum of daylight for the voyage? Must the boats that make them up be brought there in the night or lie at the wharf all night? Surely these are unreasonable requirements, more than any corresponding security warrants. The custom of towing at night is well known and was a necessary incident of .the voyage which Cook accepted when he delivered his barge. He then, knew that she could not start until afternoon, and he knew she could not arrive till after dark.</p> <p>I can see no respect in which the tugs are to blame, and the libel will be dismissed.</p> <p>This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing a libel filed against steam tugs to recover damages sustained by the tow being brought into collision with floating ice in the Hudson river about a mile above Spuyten Duyvil.</p>

<p>In Error to the District Court of the United States for the District of Montana; George M. Bourquin, Judge.</p> <p>Action at law by William A. Hansford against the Stone-OrdeanWells Company. Judgment for plaintiff, and defendant brings error.</p>

Wolverton, Judge. Suit in admiralty by the United States against the steamer Melville; the Callender Navigation Company, claimant. Decree for respondent, and libelant appeals.

Action by Clyde C. Taylor against the Delaware .& Eastern Railroad Company and another. Application by the Shawmut Coal & Coke Company for priority of payment for coal furnished the railroad company prior to the appointment of receivers as a prior claim to the lien of the first mortgage. From a decree denying priority, claimant appeals.

<p>Bankruptcy (§ 314*)—Debts Provable—Time oe Accrual.</p> <p>Under a lease of machinery providing that if the lessee became bankrupt it might be terminated at the lessor’s option, that upon the expiration of the lease the lessee should deliver the machinery to the lessor in good condition and pay such sum as might be necessary to put it in condition suitable for leasing to another lessee, and also providing for the payment of a fixed sum for deterioration and for a fixed sum for each machine, which might be reduced if the lessee had acted to the lessor’s satisfaction, claims for repairs, freight, and return charges on machines, the lease of which was not terminated until after the adjudication in bankruptcy, were not provable under Bankr. Act July 1, 1898, c. 541, § 63a, subds. 1, 4, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3447), providing that debts may be proved which are a fixed liability evidenced by an instrument in writing absolutely owing at the time of the filing of the petition, or which are founded upon a contract express or implied.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 469-473, 478, 483-487, 489, 490; Dec. Dig. § £14.*]</p>

<p>Bankeuptcy (§ 407*)—Discharge—Objections—False Statements of Assets foe Ckedit.</p> <p>One who, to obtain credit, stated that his stock at cash price was worth $7,000, and was insured for $5,500, and that he had $100 cash on hand, that his liabilities on open account were $2,500, and that he owed for borrowed money $250, while as a fact he owed his father.about $10,000, and to other relatives sums aggregating over $2,000, so that he was hopelessly insolvent, was guilty of making a false statement, barring on objections of creditors his discharge in bankruptcy, under Bankr. Act July 1, 1898, § 14b (3), as added by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (U. S. Comp. St. Supp. 1911, p. 1496), declaring that a bankrupt who has made materially false statements to obtain credit shall not receive a discharge, though two years later the undisclosed debts had been paid or released, and though the bankrupt, when making the statement, believed that his relatives would not press him for payment.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 729-731, 737, 738, 740-751, 758, 760, 761; Dec. Dig. § 407.*]</p>

<p>Bankruptcy (§§ 181, 188*)—Chattel Mortgages—Validity—Fraud.</p> <p>Where a chattel mortgage, executed by a mortgagor subsequently adjudged a bankrupt, was valid under the laws of tbe state where made, because duly filed, it was good as against tbe trustee in bankruptcy, under Bankr. Act July 1, 1898, e. 541, § 67 (d), 30 Stat. 564 (U. S. Comp. St. 1901, p. 3449), unless it was given and accepted with intent to hinder, delay, and defraud creditors, and the mere fact that the mortgagee, giving full consideration, knew or stipulated that part of the proceeds of the loan should be applied to relieve a corporation of which he was president and a relative of liability as accommodation indorsers on the notes of the bankrupt, did not invalidate the mortgage, though a preference resulted, because of want of actual fraud on tbe part of tbe bankrupt.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 270, 271, 273, 274, 286-289, 291-295; Dec. Dig. §§ 181, 188.*]</p>

Appeals from the District Court of the United States for the Southern District of New York. Suits in admiralty by Bernard McLain and by the W. C. Mason Company against the steam tug Bern; the Philadelphia & Reading Railway Company, claimant. Decrees for libelants, and respondent appeals.

<p>In Error to the District Court of the United States for the First Division of the Northern District of California.</p> <p>Earl Fullerton was convicted of violating the White Slave Act, and he brings error.</p>

<p>On motion for rehearing.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Joseph Cross, Judge.</p> <p>Suit in equity by Paul L. Crowe against the Oscar Barnett Foundry Company. Decree for defendant, and complainant appeals.</p>

Suit in equity by the W. F. & John Barnes Company against the Vandyck Churchill Company, a corporation, and others. Decree for defendants, and complainant appeals. The following is the- opinion of the District Court, by Mayer, District Judge: The suit is for infringement of United States letters patent No. 862,861, granted to John S. Barnes,' assignor of complainant, on August 6, 1907, for a drilling machine.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the W. F. & John Barnes Company against the Vandyclc Churchill Company and others. Decree for defendants, and complainant appeals.</p>

<p>Patents (§ 328*) — Validity — Prior Use — Dredger for Pulverulent Material.</p> <p>Tlie Arrott patent, No. 633,941, for a dredger for pulverulent material, held void for prior public use of the device by another than the patentee.</p>

<p>Collision (§ 95*)—Tug Towing Steamer from: Pier—Combined Faults of Tug and Tow.</p> <p>The steamship Sturton, which was light and a very large and high vessel, was being towed out from the south side of the coal pier at Sewell’s Point, while a very heavy southwest wind was blowing, and was blown to leeward and came into collision with another steamer lying on the north side of the pier and projecting about 30 feet beyond the end. Held, on the evidence, that the tug was in fault for failing to exercise the care, prudence, and caution required in view of the light condition of the steamship and the prevailing windstorm, and that the Sturton was also in fault in not having a competent crew nor sufficient steam up to properly assist in the maneuver.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. § 95.*]</p>

<p>1. Courts (§ 279*)—United States Courts—Jurisdiction—Pleading.</p> <p>Where a cause of action under the Bankruptcy Law (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]) over which a United States court has jurisdiction is stated, the jurisdiction is not ousted by failure to allege diverse citizenship, or that the amount involved is more than $3,000.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 279.*]</p> <p>2. Bankruptcy (§ 178*)—Fraudulent Conveyances—Avoidance.</p> <p>While a transfer by some third person for the. benefit of a bankrupt could not be avoided by a creditor within Bankruptcy Law (Act July 1, 1898, c. 541, § 70e, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3452]), authorizing the trustee to avoid any transfer by the bankrupt of his property which any creditor might have avoided, where the money of a bankrupt was by agreement used by his brother in creating a trust for the bankrupt’s wife for the purpose of concealing the money of the bankrupt, the transfer could be avoided.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. §§ 221, 264-274, 283, 284; Dec. Dig. § 178.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings against Mary H. Walsh, bankrupt. On motion of the City Bank of Syracuse to open and vacate an order granting a discharge to the bankrupt and revoking a discharge, on the ground that the bank did not receive notice of the application therefor.</p>

<p>1. Collision (§ 96*)—Vessel Obstructing Entrance to Slip—Negligence oe Pilot.</p> <p>A schooner, which lay with bowsprit and jibboom projecting across the month of a slip some 30 or 40 feet, held improperly moored and liable for a collision in which another vessel coming out of the slip was injured; the pilot of the latter vessel also held in fault for failing to exercise the care and skill required of him.</p> <p>[Ed. Note.—Eor other cases, see Collision, Cent. Dig. §§ 203-205; Dec. Dig. § 96.*]</p> <p>2. Pilots (§ 15*)—Degree oe Skill and Care Required. -</p> <p>The care and skill required of a pilot is the care and skill of an expert, such as is commonly possessed by others in his profession.</p> <p>[Ed. Note.—For other cases, see 'Pilots, Cent. Dig. § 18; Dec. Dig. § 15. *1</p>

<p>At Law. Action by Kostanti Lewicki against John C. Wiardi & Co. On demurrer to certain defenses.</p>

In Equity. Suit by T. O. Helm and others against J. H. Zarecor and others. On final hearing.

In Equity. Suit by C. R. Sharp and others against E. W. Bonham and others. On final hearing.

In Admiralty. Suits by Joseph Joseph & Bros. Company against the steamship F. J. Euckenbach and by Edgar F. Euckenbach against 500 tons, more or less, of scrap iron, Joseph Joseph & Bros. Company, claimant. Decrees in favor of Joseph Joseph & Bros. Company in each case.

In Bankruptcy. In the matter of John H. Fowble, bankrupt. Proceeding relative to claims of materialmen and others against a fund due'the bankrupt under a building contract.

In. Bankruptcy. In the matter of George M. Wagner, bankrupt. Oh certificate of the referee regarding the ownership of a bond and mortgage.

At Law. Action by C. C. St. John against the United States Fidelity & Guaranty Company. On petition to remove the cause from the district court of the Thirteenth judicial district of the state of Montana to the United States District Court for the District of Maryland.

<p>Action for penalties by the United States against the Oregon-Washington Railroad & Navigation Company.</p>

<p>Suit by William Black and T. A. Snook against the Manhattan Trust Company and George S. Wood, as trustee of the Oregon Development Company, a corporation, and others.</p>

<p>Bankruptcy (§ 399*)—Exemptions—Setting Apart—Jurisdiction of Bankruptcy Court.</p> <p>Where a lease provided that, if a petition in bankruptcy should be filed against the lessee, the rent, which was payable in installments, should at once become due and payable as if made payable in advance, and a petition was filed at a time when no installment was due, whereupon the lessor entered judgment for the balance of the rent, the bankruptcy court could only set apart to the lessee his exemptions, and had no jurisdiction to determine the lessor’s claim under a waiver of exemptions in the lease, though the property of the bankrupt was sold by the receiver prior to the adjudication, and the exemptions were to be set apart in money instead of specific articles,_ since the court has no jurisdiction to adjudicate claims against exempt property, except such as were acquired by a lien created by agreement of the parties prior to the bankruptcy, and the sale of the property by the receiver did not affect the bankrupt’s rights.</p> <p>[Ed. Note.—For other eases, see' Bankruptcy, Cent. Dig. §§ 657, 669; Dec. Dig. § 399.*]</p>

<p>Removal of Causes (§ 84*)—Application to Remove—Notice—Sufficiency.</p> <p>A notice to plaintiff’s attorney that defendant was about to file a peti-. tion to remove the cause to the District Court of the United States for the District of Rhode Island and a bond on removal duly executed by defendant as principal and a certain surety company as surety, and that the petition and bond would be presented to a justice of the superior court for action immediately, served on the morning of the day on which the removal papers were presented to the judge of the superior court, was a sufficient compliance with Judicial Code (Act March 3, 1911, c. 231) § 29, 36 Stat. 1095 (U. S. Comp. St. Supp. 1911, p. 142), providing that written- notice of a petition and bond for removal shall be given the adverse party or parties prior to filing the same; it not being necessary that the notice should specify the time or place where the petition and bond would be presented, the proceeding for removal being ex parte.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. § 164; Dec. Dig. § 84.*]</p>

<p>Shipping (§ 84*)—Liability op Vessel foe Injury to Stevedore—Defective Appliance.</p> <p>A steamship held liable for an injury to a stevedore while stowing wheat in the hold by reason of the breaking of the rope sling furnished by the vessel and used to hoist the sacks of wheat on board, which had become frayed and weakened by use, and which it was the duty of the ship, delegated to the second mate, to inspect and keep in safe condition.</p> <p>[Ed. Note.—Eor other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Albert O. Brown and others. Application by Samuel C. Scotten and Scot-ten & Snydacker for leave to file a bill of review.</p> <p>Order affirmed in 213 Fed. 705.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from an order of the District Court, Southern District of New York, dismissing a bill of review filed by appellants August 4, 1913, to review a decree entered in this proceeding on April 20, 1911, which decree dismissed the reclamations of appellant. The opinion of Judge Hand will be found in 213 Fed. 701.</p>

M. Smith, Judge. L. Marvin Charles was convicted of using the mails in furtherance of a scheme to defraud, and he brings error. This is a criminal action tried in the United States District Court for the District of South Carolina. Two indictments were found against the plaintiff in error, hereinafter referred to as “defendant,” charging him with using the United States mails for the purpose of fraud in violation of section 215 of the Criminal Code of the United States.

<p>In Error to the District Court of the United States for the Western District of South Carolina, at Greenville; Henry A. M. Smith, Judge.</p> <p>E. Marvin Charles was convicted of an offense, and he brings error.</p>

<p>1. Limitation of Actions (§ 37*)—Statutes Applicable—“Actions fob Relief on the Ground of Fraud.”</p> <p>A creditor’s suit to set aside conveyances by the debtor as having been made to cheat and defraud his creditors is an action for relief on the ground of fraud, within the meaning of Cobbey’s Ann. St. Neb. 1911, § 1004, by which such an action is barred in four years after discovery of the fraud.</p> <p>LEd. Note.—For other eases, see Limitation of Actions, Cent. Dig. §§ 182-186, 477; Dec. Dig. § 37.*]</p> <p>2. Courts (§ 375*)—Federal Courts—Following State Statute—Laches. '</p> <p>While, in the application of the doctrine of laches in an equity suit, a federal court is not bound by a state statute of limitations, it- will usually act or refuse to act in analogy to the state statute limiting actions at law of like character.</p> <p>[Ed. Note.—For other eases, see Courts, Cent. Dig. § 983; Dec. Dig. § 375.</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>3. * Fraudulent Conveyances (§ 249*)—Creditor’s Suit—Laches.</p> <p>Defendants, in a creditor’s suit to enforce collection of judgments 17 years old against property alleged to have been fraudulently transferred to them by, or at tbe instance of, the judgment debtor, had been in the peaceable possession of such property for many years longer than sufficient to bar an action for its recovery under the state statute, and the transfers of most of the property to them were matters of record. The decisions of the Supreme Court of the state required due diligence to discover fraud in order to prevent the running of the statute of limitations against an action based on that ground, and under Cobbey’s Ann. St. Neb. 1911, §§ 1538, 1541, and 1543, complainants were entitled, at any time after return of execution unsatisfied, to an order for the examination of defendants and the judgment debtor with respect to such transfers. The suit was not commenced until after the death of the judgment debtor and others of the persons concerned in the transfers. Held, that, under all the facts, it was barred by laches.</p> <p>[Ed. Note.—For other eases, see Fraudulent Conveyances, Cent. Dig. §§ 735-737; Dec. Dig. § 249.*]</p>

Foster, Judge. Action by Paul Doullut against the United States. Judgment for plaintiff, and defendant brings error. This suit was commenced under the provisions of Tucker Act March 3, 1887, c. 359, 24 Stat. L. 505 (U. S. Comp.

<p>In Error to the United States Court for China; Rufus H. Thayer, Judge.</p> <p>Action by H. Diederichsen & Co. against the Connell Bros. Company. Judgment for plaintiff, and defendant brings error.</p>

G. Connor, Judge. Action by the Jackson Phosphate Company against the Caraleigh Phosphate & Fertilizer Works. Judgment for defendant, and plaintiff brings error.

Action for a penalty by the United States against the Chesapeake & Ohio Railway Company. Judgment was rendered for defendant on a directed verdict, and the United States brings error.

<p>1. Bankruptcy (§ 241*)—Examination of Bankrupt—Use of Testimony.</p> <p>Bankr. Act July 1, 1898, c. 541, § 7, cl. “a” (9), 30 Stat. 548 (U. S. Comp. St. 1901, p. 3425), providing that the bankrupt when present at the first meeting of his creditors, and at such other times as the court shall order, shall submit to an examination concerning the conduct of his business, etc., but that no testimony given by him shall be offered in evidence against him in any criminal proceeding, refers to past transactions concerning which the bankrupt may be charged with criminal conduct, and does not render his testimony inadmissible in'a proceeding to punish him for contempt in giving evasive answers upon such examination.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 398, 402-404, 408, 409; Dec. Dig. § 241.*]</p> <p>2. Bankruptcy (§ 241*)—Examination of Bankrupt—Use of Testimony.</p> <p>General Order in Bankruptcy No. 22 (89 Fed. x, 32 C. C. A. xxv), requiring the deposition of witnesses to be taken in writing and, when completed, read over to the witness and signed by him in the presence of the referee, did not render the bankrupt’s testimony inadmissible in a proceeding to punish him for contempt in giving evasive answers, though it was n<jt signed by him, where his examination was not complete but was still in progress when suspended, because, in the referee’s opinion, it would be useless to go on with it</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 398, 402-404, 408, 409; Dec. Dig. § 241.*]</p> <p>3. Bankruptcy (§ 241*)—Examination of Bankrupt—Use of Testimony.</p> <p>Where, in a proceeding to punish the bankrupt for contempt in giving evasive answers, the accuracy of the notes of his testimony was proved by the stenographer who made them, no further proof was required.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent Dig. §§ 398, 402-404, 408, 409; Dec. Dig. § 241.*]</p> <p>4. Bankruptcy (§ 241*)—Contempt—Punishment—Imprisonment for Definite Term.</p> <p>Where, though the papers in a proceeding to punish bankrupts for contempt in giving evasive answers were entitled in the bankruptcy proceeding, the referee officially and of his own motion certified that the bankrupts were in contempt, the district judge acted upon his own initiative in entering a rule to show cause, the government, through the United’ States attorney, appeared and took charge of the proceedings, and the declared object of the referee, judge, and the government was to punish the bankrupts, and there was no prayer for civil relief, imprisonment for a fixed term was justified.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 398, 402-404, 408, 409; Dee. Dig. § 241.*]</p>

This cause comes here upon writ of error to review a judgment of the District Court, Southern District of New York, convicting the plaintiff in error on the first count of an indictment charging him in four counts with-violations of section 215 of the United States Criminal Code in causing writings to be placed in the post office for the purpose of executing a scheme or artifice to defraud by obtaining property by means of false and fraudulent pretenses and representations.

<p>In Error to the District Court of the United States for the District of Rhode Island; Arthur L. Brown, Judge.</p> <p>Action by Andrew Forrest against Harrison Benn. Judgment for .plaintiff, and defendant brings error.</p>

<p>Aliens (§ 54*)—Exclusion op Aliens—Review by Court.</p> <p>Under Act Feb. 20, 1907, c. 1134, § 2, 34 Stat. 898, as amended by Act March 26, 1910, c. 128, § 1, 36 Stat. 263 (U. S. Comp. St. Supp. 1911, p. 500), and Act March 4, 1913, c. 141, 37 Stat. 736, providing that aliens likely to become a public charge shall be excluded from admission to the United States, and section- 25, providing that where an alien is excluded under any law or treaty, the decision of the appropriate immigration officer, if adverse to his admission, shall be final, unless reversed on appeal to the Secretary of Labor, where a board of special inquiry convened in the manner provided by law decided that aliens were likely to become a public charge, and its decision was approved by the Secretary of Commerce and Labor, the court could only determine whether the aliens were given the hearing provided by statute, and could not inquire into the sufficiency of probative facts, or consider the reasons for the conclusion reached by the officers.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 54.*]</p>

<p>1. Admiralty (§ 117*)—Appeal—Review—Scope.</p> <p>An appeal in admiralty vacates the decree below, and the cause is tried anew, and parties other than those appealing may have new relief.</p> <p>[Ed. Note.—For other cases, see Admiralty, Cent. Dig. §§ 748-757; Dec. Dig. § 117.*]</p> <p>2. Shipping ('§ 143*)—Carriage of Goods—Liability for Injuries.</p> <p>Stevedores employed by a steamship company to discharge the cargo of a steamship were.not liable to the shipper of an automobile injured through the breaking of a rope used in hoisting it from the steamer to the pier, except for negligence.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. § 489; Dec. Dig. § 143.*]</p> <p>3. Shipping (§ 132*)—Carriage of Goods—Negligence—Evidence—Res Ipsa Loquitur.</p> <p>The breaking of a rope used by stevedores employed in unloading a vessel did not in itself establish negligence, but, where the whole operation and the apparatus used was in their exclusive control, it required them to give an explanation.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. §§ 471-487; Dec. Dig. § 132.*]</p> <p>4. Shipping (§ 132*)—Carriage of Goods — Negligence — Evidence — Weight and Sufficiency.</p> <p>* Evidence that a rope used by stevedores in unloading a vessel, and which broke, permitting an automobile to fall into the river, was furnished by the steamship company and was new, free from external defects, of a size sufficient for the load and slung in the usual way, and that the case containing the automobile was raised in the usual manner without jerk or sudden strain, showed that the accident was not due to their negligence.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. §§ 471-487; Dec. Dig. § 132.*]</p> <p>5. Carriers (§ 178*)—Carriage of Goods—Liability for Injuries.</p> <p>An express company to which an automobile was delivered to be packed and forwarded to a sea port by rail and there delivered to a steamship for transportation, which did so deliver it, and received the steamship company’s usual bill of Jading to its order, was not an insurer nor a. carrier, but a mere forwarding agent, and was not liable for the negligence of the steamship company or of stevedores employed by it to unload, the steamship.</p> <p>[Ed. Note.—Por other cases, see Carriers, Cent. Dig. §§ 804-812; Dec. Dig. § 178.*]</p> <p>6. Carriers (§ 180*)—Carriage of Goods—Liability for Injuries.</p> <p>Where an express company, to which an automobile was delivered to-be packed and forwarded to a sea port and there delivered to the steamship company for transportation, received the steamship company’s usual bill of lading containing a stipulation that the value of the shipment did not exceed $100, on which basis the freight was adjusted, and that the carrier’s liability should not exceed that sum unless a value in excess thereof was specially declared and extra freight paid, though it had notice that the car was worth £800, it was not liable to the shipper for its failure to arrange with the steamship company to carry it at that value.</p> <p>[Ed. Note.—Por other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.*]</p> <p>7. Carriers (§ 180*)—Carriage of Goods—Limitation of Liability.</p> <p>An agreement, in a bill of lading issued by a steamship company for an automobile, that the value of the shipment did not exceed $100, on which basis the freight was adjusted, and that the carrier’s liability should not exceed that sum unless a value in excess thereof was specially declared and extra freight paid, was binding and limited its liability for damages to the automobile to $100, though the freight was calculated on measurement and not on value.</p> <p>[Ed. Note.—Por other eases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.*]</p>

Petition to Revise Order of the' District Court of the United States for the Eastern District of New York. This cause comes here on petition by the trustee under a mortgage of real estate located in the city of New York to revise an order of the District Court, Eastern District of New York.

Suit by the Forty-Two Broadway Company against Charles W." Anderson, Collector of Internal Revenue of the United States for the Second District of New York. There was a decree of the District Court for complainant (209 Fed. 991), and defendant brings error.

Action by J. H. Herndon and others against T. S. Sloan and others. Judgment for the plaintiffs upon a verdict directed in their favor, and defendants bring error. Suit was brought in trespass to try title to recover a tract of 573 acres of land situated in Newton county, Tex.

This cause conies here upon a writ of error to review a judgment of the District Court, Southern District of New York, in favor of defendant in error, who was plaintiff below. The action was brought upon a written contract executed by defendant Henry H. Wilson, by his brother, and by H. H. Knowles, a brother of the plaintiff.

Dayton, Judge. In Bankruptcy. . Petition by Samuel T. Spears, as trustee in bankruptcy of Newell Brothers Dumber Company, against the Frenchton & Burnsville Railroad Company to compel defendant to deliver its assets to petitioner ás a part of the bankrupt’s estate. From a decree setting aside a referee’s order granting the relief prayed, petitioner appeals.

<p>Bankruptcy (§ 140*)—Property Vesting in Trustee—Void Liens.</p> <p>Under Civ. Code S. C. 1912, § 3740, providing that agreements by which a vendor or bailor reserves any interest shall be null and void as to subsequent creditors, unless in writing and recorded, where a contract by which a vendor reserved title was not recorded and the vendee became bankrupt, the property was held by the trustee for the benefit of all the creditors of the bankrupt, whether subsequent or antecedent creditors.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. § 140.*]</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Suit in equity by Herbert L. Hildreth against the Hauer & Suter Company. Decree for defendant (204 Fed. 792), and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; William R. Day, Judge.</p> <p>Suit in equity by the Railroad Supply Company against the Elyria Iron & Steel Company. Decree for defendant, and complainant appeals.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Feeding Device for Grass Twine Machine.</p> <p>The .Terreras patents No. 745,625, claim 1, for a feeding device for a machine making grass twine, and No. 824,871, claim 1, for an improvement thereon, were not anticipated and are valid, hut, in view of the prior art, are limited to the mechanism described and shown; as so construed, held not infringed.</p> <p>2. Patents (§ 246*)—Infringement—Combination Patent.</p> <p>In a combination patent all the elements are material, and all or their equivalents must be found in another device to constitute it an infringement.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 387; Dec. Dig. § 246.*]</p>

<p>Appeal from the District Court of the United States for the Western District of Louisiana; Aleck Boarman, Judge.</p> <p>Suit in equity by Mahlon E. Layne and others against Marvin B. Van Ness. Decree for complainants, and defendant appeals.</p>

Action at law by Henry W. Bassett against the Erickson Construction Company. Judgment for defendant, and plaintiff brings error.

In Equity. Two suits by the Marconi Wireless Telegraph Company of America against the National Electric Signaling Company.

<p>1. Patents (§ 214*)—Exclusive License—Rescission—Equitable Relief.</p> <p>Where complainant granted defendant an exclusive license to manufacture and sell a patented grate bar and stoker, to continue during the life of the patent, on a royalty of one cent a pound for metal used in stokers sold, defendant agreeing to manufacture the stokers and to pay royalties under the contract on specified quarterly dates during the life of the patent, and on patents on all improvements covering metal for stokers and operating.equipment, except engines, etc., the fact that complainant committed a breach of the contract by accepting a personal contract to install one of the stokers for a customer did not authorize defendant to refuse further to manufacture and sell stokers pursuant to the license; and, having done so, complainant, being only entitled to recover royalties on stokers manufactured and installed pursuant to the license, had no adequate remedy at law, and was therefore entitled.to a rescission of the contract in equity.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 321-327; Dec. Dig. § 214.*]</p> <p>2. Contracts (§ 262*)—Rescission—Defenses.</p> <p>In a suit in equity to rescind a contract, the fact that there has been a breach on both sides does not preclude the granting of such relief.</p> <p>[Ed. Note.—For other eases, see Contracts, Cent. Dig. §§ 1181-1183; Dec. Dig. § 262.*]</p>

<p>In Equity. Two bills by the Allen Auto Specialty Company against the Niagara Auto Cover Company. On final hearing.</p>

<p>Copyrights (§ 12*)—Subjects op Copyright—Musical Compositions.</p> <p>The addition of alto parts to well-known hymns, sung for years with only the three parts of soprano, tenor, and bass, is not such a new and original work as entitles the composer to a copyright.</p> <p>[Ed. Note.—For other eases, see Copyrights, Cent. Dig. §§ 14, 15; Dec. Dig. § 12.*]</p>

<p>1. Highways (§ 115*)—Damages from Construction—Injunction.</p> <p>A railroad company held not entitled to an injunction to restrain the construction of an important state highway which for a distance, was being built along the face of a cliff: above complainant’s tracks, necessitating blasting which threw rock and earth down upon such track, injuring the same and causing temporary delays in the movement of trains, where the contractors were solvent and able to respond in damages, and, by cooperation between them and complainant, danger of injury to trains or passengers could be practically obviated.</p> <p>[Ed. Note.—For other cases, see Highways, Gent. Dig. §§ 358-370, 372, 373; Dec. Dig. § 115.*]</p> <p>2. Eminent Domain (§ 113*)—Property “Damaged” by Public Work—Temporary Injury.</p> <p>In order that property shall be “damaged” by a public work, within the meaning of Const. Wash. art. 1, § 16, so as to entitle the owner to compensation paid or secured in advance, the injury must be of such a permanent character as to impair the value of the fee.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 236, 243, 265; Dec. Dig. § 113.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1812-1820; vol. 8, pp. 7625, 7626.]</p>

<p>In Equity. Suit by G. J. Buchler against W. W. Black and others. On final hearing.</p>

In Equity. Suit by the Dalton Adding Machine Company against the State Corporation Commission of the Commonwealth of Virginia, and the members thereof. On motion for a preliminary injunction.

In Equity. Action by Walter A. Keene, as trustee in bankruptcy of John Gerrick and others, bankrupts, against the .¿Etna Life Insurance Company. -On demurrer and motion to strike interrogatories.

<p>In Equity. Suit by the Eastern Oregon Rand Company against the Des Chutes Railroad Company.</p>

<p>1. Aliens (§ 39*)—Power to Exclude Aliens.</p> <p>Congress may define and regulate the admission of aliens into the United States and prescribe the conditions upon which the privilege of admission may be enjoyed.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. § 100; Dec. Dig. § 39.*]</p> <p>2. Aliens (§ 39*)—Exclusion—Review of Proceedings.</p> <p>Congress may commit to any'official, department, or tribunal, executive or judicial, the determination of any questions of fact or otherwise upon which the admission of aliens may depend, and may prescribe within what time, in what manner, and by whom any decisions made may be reviewed.</p> <p>[Ed. Note.—For other eases, see Aliens, Cent. Dig. § 100; Dec. Dig. § 39.*]</p> <p>8. Aliens (§ 54*)—Exclusion—Review of Proceedings.</p> <p>No express power having been conferred and no duty imposed on the courts to review the proceedings of immigration officials in excluding aliens, the court cannot and should not interfere unless a judicial question fairly arises.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 54.*]</p> <p>4. Habeas Corpus (§ 23*)—Administrative Proceedings—Judicial Functions.</p> <p>Color of authority or even clear and unquestioned power to review the acts of a different department of the government should be exercised with care and discretion.</p> <p>[Ed: Note.—For other cases, see Habeas Corpus, Cent. Dig. § 17; Dec. Dig. § 23.*]</p> <p>5. Aliens (§ 54*)—Exclusion—Review op Proceedings.</p> <p>The partial exclusion of counsel from hearings held by immigration authorities pursuant to the general regulations of the department did not present a judicial question justifying the courts in reviewing the acts of the immigration officials in excluding an alien.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 54.*]</p>

<p>1. Bankeuftcy (§ 342%*)—Failube to Gbant Dischabge—Effect.</p> <p>Where a petition by a bankrupt for bis discharge was denied, the refusal of the referee to allow a claim against the bankrupt, filed by him as guardian of bis infant children, was not reviewable on bis application, because it was immaterial to him whether the claim was allowed or not [Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 530; Dec. Dig. § 342%.*]</p> <p>2. Judgment (§ 720*)—Conolusiveness—Adjudication of State Goubt—Effect as to Claim against Bankeupt’s Estate.</p> <p>A decree of a state court, in a suit to set aside a deed made by a bankrupt to his infant children, instituted after the filing of the petition in bankruptcy, which adjudicated that the deed was- without consideration, conclusively determined want of consideration, and a claim of- the children, based on' the same transaction, presented against the bankrupt, was properly rejected.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1251; Dec. Dig. § 720.*]</p>

In Bankruptcy. In the matter of William Dutcher, bankrupt. On petition to review an order allowing the Title Guaranty & Surety Company a preference under an assignment of certain laborers’ claims for services rendered the bankrupt.

<p>At Law. Action by William Johnson against the Butte Alex Scott Copper Company. On motion to strike transcript from state court from files.</p>

<p>In Error to the District Court of the United States for the District of Montana; George M. Bourquin, Judge.</p> <p>Sigmund Suslak was convicted of violating the Mann White Slave Act (Act June 25,: 1910, c. 395, 36 Stat. 825 [U. S. Comp. St. Supp. 1911, p. 1343]), and he brings error.</p>

<p>1. Receiving Stolen Goods .(§ 9*)—Trial—Instructions.</p> <p>Under Or. Code, § 2SS (Act March 4, 1909, c. 321, 35 Stat. 1145 [U. S. Comp. St. Supp. 1911, p. 1675]), providing that whoever shall buy or receive any money or goods which has been ieiouiu..s<y tai.cn or stolen, knowing it to have been so taken or stolen, shall be punished as therein provided, it was error to charge that the jury might infer knowledge that the property was stolen, from circumstances that should suffice to satisfy a man of ordinary intelligence and caution that it was stolen, that whatever would carry knowledge or induce a belief in the mind of defendant that the property was stolen, or that would induce it in the mind of a reasonable person, under the same circumstances, would, in the absence of countervailing evidence, be considered sufficient to apprise defendant or induce in his mind a like belief, that defendant was charged with what he knew or was put upon inquiry to know, that the jury could convict if defendant had such knowledge as would put a reasonable man upon inquiry from which he could ascertain the truth, or if he purchased with knowledge, belief, or a reasonable suspicion that he failed to investigate for fear he would learn that the property had been stolen, since the gist of the offense is the actual state of defendant’s mind and not what might have been the state of mind of some other person, and, while knowledge need not be acquired by personal observation nor shown by direct testimony, the jury must find knowledge and not merely a suspicion, especially where the purchase was for full value without secrecy, concealment, or subsequent denial, there was no attempt to dispose of the property for an inadequate price, and the vendor was without a bad reputation.</p> <p>[Ed. Note.—For other cases, see Receiving Stolen Goods, Gent. Dig. §§ 19-22; Dec. Dig. § 9.*]</p> <p>2. Criminal Law (§ 865*)—Triai^Coercing Verdict.</p> <p>On a trial for receiving stolen cattle, where the jury retired on Friday afternoon and, after being out until 11 o’clock Saturday morning, reported that they had agreed as to one defendant but were unable to agree as to the other two defendants, it was error for the court, after inquiring and ascertaining that the jury stood 7 to 5, to charge that the case should be finally disposed of as to all defendants, that it was the second trial of the ease, and that there was no reason to believe that a more intelligent or honest jury more likely to arrive at a verdict could be drawn on another trial, that justice demanded that the case be brought to an end, that the expense of the trials was very great, that the government had a right to a verdict without a further expenditure of time and money, and defendants, if guilty, a right to have that fact determined before they were bankrupt, and, if innocent, a right to be acquitted before their means were exhausted, that, if seven jurors were for an acquittal, the others should seriously inquire whether there was not a reasonable doubt, and, if tlie seven were for conviction, whether there was a reasonable doubt, and that they should further consider the case; the court believing that they could honestly come to an agreement, especially where, in less than an hour, they returned a verdict acquitting one defendant and convicting the other.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2069; Dec. Dig. § 865.*]</p> <p>3. Criminal Law (§ 1172*)—Harmless Error—Instructions—Testimony of Accomplices.</p> <p>On a trial for receiving stolen cattle, from B., an instruction that B., if defendants knew he was selling them stolen stock, would be an accomplice, that that would lead the jury to give his testimony serious consideration and scan it very carefully, that they should do that anyhow because he had been convicted of stealing the stock, and they should take that into consideration in weighing his evidence, but that they should take his evidence in connection with all the evidence and circumstances to determine whether, upon the whole, they were satisfied beyond a reasonable doubt of defendants’ guilt, though a meager instruction upon the weight to be given to B.’s testimony, was not prejudicially erroneous.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.*]</p>

<p>In Error to the District Court of the United States for the Western District of Missouri.</p> <p>Criminal prosecution by the United States against the Joplin Mercantile Company and Joseph Filler. Judgment of conviction, and defendants bring error.</p>

<p>Appeal from the District Court of the United States for the District of Minnesota; Charles A. Willard, Judge.</p> <p>Suit.in equity by the Supreme Lodge, Ancient Order of United Workmen, against the Grand Lodge, Ancient Order of United Workmen of the State of Minnesota, and others. Decree for defendants, and complainant appeals.</p>

<p>In Error to the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Action at law by A. D. Cook against Hale & Ward. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Principal and Surety (§ 59*)—Liability of Surety—Construction of Contracts of Surety Companies.</p> <p>The general rule that a .surety should be held only where his liability is fixed by the most strict law does not apply to a corporate surety, which is engaged in the business of becoming surety for premiums supposed to be based on the amount of the risk, but, on the contrary, such contracts are construed most strongly against the surety.</p> <p>[Ed. Note.—For other cases, see Principal and Surety, Cent. Dig. §§ 103, 103%; Dec. Dig. § 59.*]</p> <p>2. Municipal Corporations (§ 374*)—Contracts—Subetjt on Bond op Contractor.</p> <p>Complainant surety company executed a bond to the state of Kansas as surety for a contractor for paving with the city of Topeta, conditioned for the payment by tbe contractor of all claims for labor and material. Under tbe statute wben sucb bond was given, no lien could attach as against tbe city. On completion of tbe contract, there was a sum due from tbe city to tbe contractor thereon, and also sums due from the contractor to subcontractors for labor and material, for which complainant was liable on its bond. In an action by tbe contractor against tbe city, the city pleaded as a set-off a prior indebtedness from tbe contractor exceeding tbe amount of his claim, and recovered judgment against him thereon. Held, that, there being no statutory lien in favor of the subcontractors against the city to which complainant could be subrogated, it could not enforce an equitable lien in their behalf, since there was no fund due from the city to the contractor to which it could attach.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. § 374.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E.'Foster, Judge.</p> <p>Action at law by the United States against Mrs. Rudolph E. Theurer and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Innkeepers (§ 7*)—Refusal to Furnish Accommodations—Actions—Declaration.</p> <p>In an action against an innkeeper for refusing accommodations to plaintiff, his wife, and daughter, declaration held sufficient to fully advise defendant as to the matters which it was called upon to answer.</p> <p>[Ed. Note.—For other eases, see Innkeepers, Cent Dig. §§ 10, 11; Dec. Dig. § 7.*]</p> <p>2. Innkeepers (§ 7*)—Refusal to Furnish Accommodations—Actions—Declaration.</p> <p>In an action against an innkeeper for refusing accommodations to plaintiff, his wife, and daughter, it was not necessary for the declaration to allege that defendant had rooms at the time for the accommodation of guests, as it is presumed that an innkeeper is prepared for the accommodation of guests, and the declaration need not allege a fact as to which the burden is on defendant, or the existence of which is wholly within defendant’s knowledge.</p> <p>[Ed. Note.—For other cases, see Innkeepers, Cent. Dig. §§ 10, 11: Dec. Dig. § 7.*]</p> <p>3. Pleading (§ 48*)—“Declaration”—Sufficiency.</p> <p>The declaration need state only such facts as are necessary to constitute a cause of action, but must be sufficiently full and explicit to inform defendant of the nature of the claim and to enable him to plead.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 105, 106; Dec. Dig. § 48.*</p> <p>For othér definitions, see Words and Phrases, vol. 2, pp. 1902, 1903.]</p> <p>4. Appeal and Error (§ 843*)—Review—Matters Unnecessary to Decision.</p> <p>Where, in an action against an innkeeper for refusing accommodations, the other counts were sufficient, it was unnecessary to determine whether the counts which alleged that defendant was the keeper of a house of private entertainment, and that he was the keeper of an ordinary, were sufficient.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3341; Dec. Dig. § 843.*]</p>

<p>In Error to the District Court of the United States for the Western'District of Virginia, at LynchburgHenry C, McDowell, Judge.</p> <p>Action at law by Ida G. Jackson against the Virginia Hot Springs Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Collision (§ 71*)—Anchored Vessel—Improper Anchorage.</p> <p>A vessel anchoring in a place forbidden by a local law or custom in case of collision must take the consequences of her own unlawful acts.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. § 101; Dec. Dig. § 71.*]</p> <p>2. Collision (§ 69*) — Vessels Anchoring in Channel — Construction op Statute.'</p> <p>Act March 3, 1899, c. 425, § 15, 30 Stat 1152 (U. S. Comp. St 1901, p. 3543), making it unlawful to tie up or anchor vessels in navigable channeis in such manner as to prevent or obstruct the passage of other vessels, is not an absolute prohibition and is not violated by a vessel which anchors at a point ip a channel where notwithstanding such anchorage other vessels, navigated with the care the situation requires, can safely pass.</p> <p>[Ed. Note.—For other eases, see Collision, Cent. Dig. §§ 87-90; Dec. Dig. § 69.*]</p> <p>3. Collision (§ 71*)—Steamship Anchored in Channel and Passing Vessel—Mutual Faults.</p> <p>A collision occurred in the Elizabeth river between a steamship and a scow passing in tow. The steamship had anchored to the west of the channel, but a strong wind caused her to swing into the channel and also to drag her anchor until she obstructed three-fourths of the 800-foot channel, when the scow struck and broke her propeller. The harbor regulations prohibited anchoring in the channel. Held, that she was in fault, but that the towing tug, which was moving at only two miles an hour against the wind and tide, was also .in fault for not stopping when the steamship was seen drifting across the channel.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. § 101; Dec. Dig. § 71.*</p> <p>Collision with or between towing vessels and vessels in tow, see note to The John Englis, 100 C. C. A. 581.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p> <p>Suit for collision by the Strathleven Steamship Company, Limited, owner of the steamship Strathleven, against the tug Margaret J. Sanford and scow S. 11, P. Sanford Ross, claimant. On motion to modify decree in 213 Fed. 975, as to costs in appellate court.</p>

<p>1. Insurance (§ 457*)—Accident Policy—“Accidental”—Death from Poison Ivy.</p> <p>Where plaintiff’s husband died as the result of coming in contact with poison ivy while in the woods,-his death was “accidental” within the terms of an accident policy insuring against injuries, resulting in death, through external, violent, and accidental means.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1175; Dec. Dig. § 457.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 62-70; vol. 8, p. 7560.</p> <p>Accident insurance, risk and causes of loss, see notes to National Acc. Society v. Dolph, 38 C. C. A. 3; New Amsterdam Casualty Co. v. Shields, S5 C. C. A. 126.]</p> <p>2. Insurance . (§ 457*) — Accident Policy — Cause of Death — Disease — Poison.</p> <p>An accident policy insured against death resulting through external, violent, and accidental means; the constitution of the association providing that no benefit should be payable unless the accident alone resulted in producing visible external marks of injury or violence, and unless death or disability resulted wholly from the injury, and not from poison or injurious matter taken or administered, accidentally or otherwise. Decedent while in the woods Accidentally came in contact with poison ivy, which resulted in an eruption between his fingers, which grew until it covered his limbs and body, and in seven weeks caused his.death. It was also shown that contact with ivy operates like a burn, in that when the eruption covers the body it seals the skin against discharge of secretions and blood poisoning results. Held, that decedent’s death did not result from poison either “taken or administered,” nor from disease.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1175; Dec. Dig. § 457.*]</p> <p>3. Insurance (§ 529*)—Accident Policy—Amount of Liability.</p> <p>Decedent, insured by an accident policy against accidental injury or death, came in contact with poison ivy in the woods May 2, 1909, at which time the certificate of insurance and the constitution and by-laws of the insurer provided for payment of $3,000 if death resulted within 120 days. On June 8th following the constitution and by-laws were amended so as to increase the indemnity to $4,000 in case of death, within the limited period after accident, of any member of the beneficiary department. Decedent died June 23, 1909. Held that, since the insurance was against accident, as distinguished fronj decedent’s death, which was the result of the accident alone, and this happened prior to the amendment, plaintiff’s recovery was limited to $3,000.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1315; Dec. Dig. § 529.*]</p>

<p>On motion to revise former opinion to conform to action of District Court.</p> <p>Pursuant to mandate of the Circuit Court of Appeals, the following proceedings were had April 7, 1914, in the District Court before Hand, District Judge:</p> <p>Mr. Merwin: The mandate of the Circuit Court of Appeals having been sent down to the District Court, affirming the decision of the District Court as to the question of validity, and reversing the District Court as to the question of infringement, without, however, prejudice to, motions to introduce further proof as to priority of invention- in the District Court, counsel for plaintiff offers in evidence the Danish patent No. 7,576, issued May 29, 1905, published June 13, 1905, and filed in the United States Patent Office on July 6, 1905, together with translation of the same; Danish patent No. 8,016, issued November 6, 1905, published November 20, 1905, and recorded in the United States Patent Office December 14,1905; also Swedish patent No. 20,579, issued April 1, 1905, and filed in the United States Patent Office April 23, 1906, together with translation of the same.</p> <p>Plaintiff rests.</p> <p>The Court: Mr. Merwin, I have to-day received a letter from Mr. Prindle, dated April 6, 1914, in which he says that he has no argument to offer in opposition to this motion, that he has been unable to find the witness upon whom, he relied to carry back his own date of invention, and therefore does not wish to make any motion for permission to take testimony on his own behalf. I understand this to mean, therefore, that he defaults on this application, and in accordance with the decision of the Circuit Court of Appeals I hereby make a finding that the date of your invention antedates the patents put in evidence before the Circuit Court of Appeals by the defendant, and upon that you are entitled to the usual decree.</p> <p>I therefore direct that the usual interlocutory decree pass upon claims 1, 2, 3, 5, and 10.</p>

Information by the United States against Two Gallons of Whisky and other articles. Judgment directing forfeiture of the whisky and certáin property belonging to one J. Matt.

In Equity. Suit by the Mississippi Valley Trust Company, a Missouri corporation, and others against the Oregon-Washington Timber Company, an Oregon corporation, and others, in which the state of Washington intervened.

<p>Prisons (§ 15*)—Breach of Parole—Commutation for Subsequent Good Behavior.</p> <p>Under Act June 25, 1910, c. 387, § 6, 36 Stat. 820 (U. S. Comp. St. Supp. 1911, p. 1703), providing that where a prisoner breaks his parole he shall serve the remainder of the sentence originally imposed upon him, a prisoner is not entitled to commutation for good behavior under the Commutation Law (Act June 21, 1902, c. 1140, 32 Stat. 397), as amended April 27, 1906 (34 Stat. 149, c. 1997 [U. S. Comp. St. Supp. 1911, p. 1701]), during his confinement after being returned to prison for the breach of his parole.</p> <p>[Ed. Note.—Eor other cases, see Prisons, Cent. Dig. § 26; Deo. Dig. § 15.*]</p>

<p>Bankruptcy (§ 409*)—Grounds for Refusal of Discharge—Failure to Keep Books.</p> <p>Under 'Bankruptcy Act July 1, 1898, c. 541, § 14, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), as amended June 25, 1910, c. 412, § 6, 36 Stat. 839 (U. S. Comp. St. Supp; 1911, p. 1496), providing that an applicant for discharge shall be discharged unless he has, with intent to conceal his financial condition, destroyed, concealed, or failed to keep books of account or records from which such condition might be ascertained, where a bankrupt, who was seriously embarrassed financially for several months prior to the bankruptcy, purchased lumber during the seven or eight months immediately preceding the bankruptcy, the larger part of which was never paid for, which he sold for over $11,000 in cash, the last of the transactions occurring but a short time before, the bankruptcy, but failed to keep any record, by books or othérwise, of the disposition of the proceeds of the sales, a discharge would be denied, since it might be assumed that his failure to keep books was in contemplation of bankruptcy, and it was so wholly without excuse that it must have been done v^ith intention to conceal his financial condition.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. §§ 739, 752-757; Dec. Dig. § 409.*]</p>

In Bankruptcy. In the matter of the bankruptcy of the Social Circle Cotton Mills, bankrupt. Decision of the referee denying the claim of the First National Bank of Madison for priority as against the trustee of the bankrupt approved and confirmed.

<p>Attorney and Client (§ 150*)—Right to Compensation—Substitution op Attorneys.</p> <p>An attorney, wbo was to receive one-fourth, of the recovery for bringing a suit, was entitled only to reasonable compensation on the basis of the services rendered and capable of being rendered by him, where another attorney was substituted who negotiated a settlement.</p> <p>[Ed.'Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 354-357; Dec. Dig. § 150.*]</p>

In Admiralty. Suit for collision by the A. H. Bull Steamship Company, owner of the steamship Hilton, against the steamer Atlanta, the Chesapeake Steamship Company, claimant, with cross-libel.

<p>1. Usury (§ 115*)—Usury as Defense—Evidence.</p> <p>In support of the defense of usury, parol evidence is admissible although it varies or adds to the written contract.</p> <p>[Ed. Note.—For other cases, see Usury, Gent. Dig. § 326; Dec. Dig. § 115.*]</p> <p>2. Usury (§ 16*)—Usurious Transactions—Devices as Cover for Usury.</p> <p>If a transaction was in substance merely a device to evade the usury laws, the defense of usury will be sustained, regardless of the form of the contract or of the language used in the negotiation as descriptive of the transaction.</p> <p>[Ed. Note.—For other cases, see Usury, Cent. Dig. § 30; Dec. Dig. § 16.*]</p> <p>3. Usury (§ 31*)—Usurious Transactions—Purchase and Sale of Property Under A&reement.</p> <p>The owners of the stock of a lumber company against whose property, consisting of a large sawmill, timber lands, and a short-line railroad, a foreclosure suit was pending, applied to the real complainant herein, which was a realization company, for a loan with which to redeem from the mortgage. They were told that under its charter complainant could not lend money, and that its business was to buy property, largely that of insolvents, and sell again at a profit. After negotiations, it was agreed that complainant would buy in the property at foreclosure sale, if it could be purchased for $450,000, and resell the same to a new company to be organized, taking its notes therefor, secured by mortgage on the property for $597,000, which was about $75,000 in excess of lawful interest on the money actually advanced. This agreement was carried out, except that the notes and mortgage were for $750 more than agreed, which was admittedly to cover interest for the few days before the new notes were given. Complainant had no experience in the lumber business and would not have bought the property except for the agreement. Held, that the transaction was in substance a loan of money and was usurious; the exaction of the $75,000, ostensibly as a profit, being merely a device to cover the taking of usurious interest.</p> <p>[Ed. Note,—For other cases, see Usury, Cent, Dig. §§ 74, 78-81; Dec. Dig. § 31.*]</p> <p>4. Usury (§ 83*)—Usury >as a Defense.</p> <p>That the maker of usurious notes is a corporation which has no property beyond that mortgaged to secure the notes, or even the fact that such property is insufficient in value to pay the debt, does not relieve the notes of their usurious character nor deprive the corporation of the right to plead the usury as a defense.</p> <p>[Ed. Note.-—For other cases, see Usury, Cent. Dig. §§ 163-166; Dec. Dig. § 83.*]</p> <p>5. Usury (§ 2*)—What Daw Governs—Place of Payment.</p> <p>Where notes were executed in Arkansas and secured by mortgage on property in that state, but were payable in Chicago, where the payee resided and carried on its business, the notes were governed, as to the question of usury, by the law of Illinois.</p> <p>[Ed. Note.—For other cases, see Usury, Cent. Dig. §§ 2-15, 418; Dec. Dig. § 2.*]</p>

<p>In Equity. Bill by Charles C. Burlingham and others, trustees of Thomas A. McIntyre and others, bankrupts, against the City of New Bern and others. Heard on the pleadings and an agreed statement of facts.</p>

<p>In Error to the District Court of the United States for the Northern District of Alabama; Wm. I. Grubb, Judge. Action at law by Alexander Eccles & Co. against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the' United States for the Eastern District of Tennessee.</p>

<p>Appeal from the District Court of the United States for the Southern District of Ohio.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Suit in admiralty by A. G. Thomas against the Mannheim Insurance Company of Mannheim, Germany. Decree for libelant, and respondent appeals.</p>

<p>Appeal from the District Court of the United States for fhe Eastern District of Louisiana. In the matter of James B. Sinnott, alleged bankrupt. From an order dismissing the petition, the Metropolitan Bank and other petitioners appeal.</p>

<p>In Error to the District Court of the United States for the Northern Division of the Eastern District of Washington.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, Judge. Suit in equity by W. H. Sawyer and others, against Raymond S. Gray and others. Decree for defendants, and complainants appeal.</p>

<p>Appeal from the District Court of the United States for the Middle District of Alabama.</p>

Suit in equity by the United States, for the use of Frank Miller and others, against Edmund H. Mitchell and Henry T. Mitchell, doing business as Mitchell & Co., and the Illinois Surety Company.